Constitutional Law Part 3

Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd editionChapter 9 - POGG...... 4 Introduction...... 4 History of POGG – three branches...... 4 AG Canada v. AG Ontario (Labour conventions) (JCPC 1937) – narrow interpretation of POGG...... 5 AG Canada v. AG Ontario (The Employment and Social Insurance Act) (JCPC 1937) - narrow...... 5 Co-operative Committee on Japanese Canadians (JCPC 1945) – emergency branch...... 6 Canada Temperance Federation (JCPC 1946) – watershed case  expansion of POGG...... 7 Anti-Inflation Case...... 7 Reference re: Anti Inflation...... 7 SWINTON ARTICLE...... 8 Eight points about Laskin decision...... 8 Beetz – DISSENT...... 8 Beetz on NATIONAL CONCERN BRANCH...... 9 R v. Crown Zellerbach Canada Ltd. (SCC 1988) – important case for insight into national concern...... 9 Friends of the Oldman River Society v. Canada (1992 SCC) - Has the environment been given to the federal government?...... 10 Chapter 14 – Aboriginal Peoples...... 10 Section 88 – referential incorporation...... 11 Kruger and al. v. The Queen, [1978] 1 S.C.R...... 11 Dick v. The Queen (1985 SCC)- Self-governance issues raised – first nations autonomy...... 11 4 exceptions to S. 88 – Provincial Law can’t be referentially incorporated...... 13 Peter Hogg, Constitutional Law of Canada, 3d ed. – incorporation by reference...... 13 Provincial Extinguishment of Aboriginal Title...... 14 R. v. Delgamuuk (1997) – jurisdiction over extinguishment of aboriginal rights...... 14 R. v. Morris (2006 SCC) – aboriginal treaty rights and s.88...... 15 Chapter 11 - Criminal Law Power...... 15 Deciding where these issues fall – federal or provincial...... 16 Dichotomies between Criminal Law and Civil Rights...... 16 Cases of Federal Legislation...... 17 Dairy Industry Act (1949 SCC; aff. PC 1951) Margarine Reference – need: criminal purpose + prohibition and penalty...... 17 RJR MacDonald (1995 SCC) – confirms broad scope for criminal law power...... 17 R. v. Hydro Quebec (1997 SCC) – Act must contain prohibition...... 18 Regulatory or Criminal law? Following factors are relevant:...... 19 Reference re Firearms Act (2000 SCC)...... 19 Cases dealing with provincial legislation:...... 20 Re Nova Scotia Board of Censors v. McNeil (1978 SCC)...... 20 AG Canada v. Dupond (SCC 1978) : court draws fine distinctions to delineate federal and provincial powers...... 21 Westendorp v. The Queen (1983 SCC) - Reverses trend of McNeil and Dupond...... 21 Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board) (1987 SCC)...... 22 R. v. Morgentaler (1993 SCC)...... 22 Trade and Commerce Powers (s. 91)...... 22 Chapter 15 – Antecedents of the Charter...... 23 Introduction...... 23 Background...... 23 Common Law Constitution...... 23 A.V. Dicey - Introduction to the Study of the Law of the Constitution, 1885...... 23 Roncarelli v. Duplessis (1959 SCC)...... 23 Andrew Petter lecture...... 24 Rights and Federalism...... 25 Union Colliery v. Bryden (1899 PC) – Dominion has jurisdiction of anything that affects aliens...... 25 Cunningham v. Tomey Homma (1903 PC) – Provinces can restrict right to vote of naturalized Japanese. 25 Implied Bill of Rights...... 25 Reference re Alberta Statutes (1938 SCC)...... 26 Canadian Bill of Rights (1960)...... 26 R. v. Drybones (1970 SCC) – application of Bill of Rights...... 26 Bliss v. AG Canada (1979 SCC) - Pregnancy benefits...... 261 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Human Rights Legislation...... 27 Brooks v. Canada Safeway (1989 SCC) – human rights challenge...... 27 Vriend v. Alberta (1998 SCC) – human rights as basis for suit...... 27 Chapter 17 – The Framework of the Charter...... 27 Interpreting Rights...... 28 Two general principles...... 28 Hunter v. Southam (1984 SCC)...... 28 R. v. Big M Drug Mart (1985 SCC)...... 28 Aids to interpretation...... 28 Charter Analysis - background...... 28 Defining Limitations - Section 1...... 29 Prescribed by law...... 29 R. v. Therens (1985) – prescribed by law...... 30 Sunday Times v. United Kingdom (UK 1979) – accessible + sufficient precision = prescribed by law...... 30 R. v. Nova Scotia Pharmaceutical Society (1992 SCC) – liberal interpretation of prescribed by law...... 30 Oakes Test...... 31 R. v. Oakes (1986 SCC) – outlined test for s. 1 limitation or rights...... 31 Dagenais v. Canadian Broadcasting (1994 SCC) – refines last stage of Oakes...... 32 Edmonton Journal v. Alberta (AG) (1989 SCC) – Wilson’s contextual approach to interpretation...... 32 Irwin Toy – commercial speech; deference to legislature...... 32 Thompson Newspapers Co. v. Canada (1998 SCC) – contextual analysis...... 33 RJR Macdonald (1995 SCC) – McLachlin comments on use of contextual analysis...... 33 R. v. Lucas (1998 SCC) – Another statement of this concern...... 33 Section 33 – “notwithstanding clause”...... 33 Ford v. Quebec (1988 SCC) - notwithstanding...... 34 Chapter 18 – Application of Charter...... 34 RWDSU v. Dolphin Delivery (1986 SCC) – private actors not subject to Charter...... 34 Applicability to universities, hospitals, and colleges...... 35 McKinney v. The University of Guelph [1990] 3 S.C.R. 229 – Charter doesn’t apply to universities...... 35 Stoffman v. Vancouver General Hospital (1990 SCC) - Charter doesn’t apply to hospitals...... 35 Douglas Faculty Association v. Douglas College (1990 SCC) - college is governmental...... 36 Lavigne v. Ontario Public Service Employees Union (1991 SCC) – college controlled by government...... 36 Godbout v. Longueuil (1997 SCC) – Charter applies to municipalities...... 36 Application to non-governmental actors...... 36 Eldridge v. British Columbia (AG) (1997 SCC) – Charter can be applicable to some non-governmental entities when enacting a governmental program...... 36 Slaight Communications Inc. v. Davidson (1989 SCC) – government can’t grant authority to other entities to break Charter...... 37 Blencoe v. British Columbia (Human Rights Commission) (2000 SCC) -...... 37 Government Inaction – positive and negative obligations...... 37 Vriend v. Alberta (1998 SCC)...... 37 Dunmore v. Ontario (AG) (2001 SCC)...... 38 Application of Charter to Courts and Common Law...... 38 BCGEU v. British Columbia (1988 SCC) – common law application...... 38 R. v. Swain (1991 SCC) - common law used in criminal law is applicable...... 38 Dagenais v. Canadian Broadcasting (1994 SCC) – common law modified...... 38 Hill v. Church of Scientology of Toronto (1995 SCC)...... 39 RWDSU v. Pepsi Cola (2002 SCC) – secondary picketing; common law application...... 39 Bell ExpressVu v. R (2002 SCC) – consultation of Charter in statutory interpretation...... 39 Chapter 20: Freedom of Expression...... 39 R. v. Keegstra (1990 SCC) – introduction to freedom of expression...... 39 Richard Moon, The Constitutional Protection of Freedom of Expression...... 40 Owen Fiss – Liberalism Divided...... 40 RWDSU v. Dolphin Delivery Ltd. (1986 SCC)...... 40 Commercial Advertising...... 40 Irwin Toy Ltd. v. Quebec (Attorney General), [1989 SCC] – template for 2(b) analysis; commercial speech ...... 40 Rocket v. Royal College of Dental Surgeons (1990 SCC) – commercial speech can have a value > profit. 42 Reference re ss 193 and 195.1 (1)(c) (1990 SCC)...... 42 RJR - MacDonald Inc. v. Canada (Attorney General), [1994 SCC]...... 43 Hate Speech...... 442 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition K Mahoney, “Hate Speech: Affirmation or Contradiction of Freedom of Expression”...... 44 A.A. Borovoy, “How not to fight Racial Hatred”...... 44 R. v. Keegstra (1990 SCC) – hate speech...... 44 Taylor v. Canadian Human Rights Commission (1990 SCC)...... 47 Chapter 23 - Equality Rights...... 47 Idea of Equality...... 47 Equality as a Legal Standard...... 47 Equality in the Charter...... 48 P. Hughes, Recognizing Substantive Equality as a Foundational Constitutional Principle...... 48 formal equality...... 48 formal inequality...... 49 substantive equality...... 49 disparate Impact...... 49 Section 15...... 49 Andrews v. Law Society of British Columbia (1989 SCC) – first test of section 15...... 50 R. v. Turpin (1989 SCC) – purpose of s.15  protects those who have been disadvantaged...... 52 The Law Test...... 53 Law v. Canada (Minister of Employment and Immigration) (1999 SCC) – current template for equality test ...... 53 Eldridge v. British Columbia (1997 SCC) – adverse effects can be discriminatory in “neutral law”...... 54 Corbiere v. Canada (1999 SCC) – elaborates criteria for analogous grounds...... 553 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Chapter 9 - POGG Introduction I. POGG power in Preamble to s. 91 a. the fed gov’t has the power “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” II. There have been two ways of reading these words. a. The general theory of POGG i. POGG is the whole power of the federal government 1. Some things are given to the provinces in S. 92, but all that remains is POGG = general grant of power ii. Russell (1882) Judicial Committee 1. Temperance legislation 2. Looked at provincial heads of power and decided it didn’t fit into likely categories of provinces  it must be a general power of federal iii. Russell has been overtaken by other interpretations of the words of s. 91. The general theory of POGG is now pretty much discredited and has been replaced by what is called the residuary theory of POGG. b. The Residuary Theory of POGG i. POGG is separate and distinct head of power under S. 91 ii. Covers what is not in S. 91 and 92 iii. Theory of exhaustiveness – jurisdiction to do everything must be somewhere iv. But, through Charter, some things federal or provincial cannot do v. This is the theory of POGG that remains in play today. History of POGG – three branches c. Three distinct branches of POGG power where it has been used i. gap branch 1. relatively uncontroversial (politics of Canadian federalism are important to defining POGG in the other branches) 2. extends to things that are “drafting oversights” 3. things that are obviously federal - few will contest this characterization 4. But, don’t fit into the federal list 5. distinguish from areas of jurisdiction that are historically new a. Something that is ‘new’ is not thought to be a mistake or drafting oversight 6. Examples a. Wharton – federal incorporation of companies with objects other than provincial objects b. Fed power over offshore territory ii. emergency branch (narrow interpretation of POGG) 1. AG Canada v. AG Ontario (Labour conventions 1937 JCPC, below) 2. AG Canada v. AG Ontario (Employment Insurance 1937 JCPC, below) a. High bar for emergency in these cases b. Onus on government to show emergency 4 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition 3. Co-operative Committee on Japanese Canadians a. Lower bar for emergency in wartime b. Onus on complainant to show NO emergency c. These wartime cases are exceptions 4. War, pestilence, famine, drunkenness iii. national dimensions branch (broader interpretation of POGG) 1. Canada Temperance Federation (1947 SCC) a. Also expanded POGG emergency power b. POGG not just for emergencies c. Paved the way for Anti-inflation case in 1976AG Canada v. AG Ontario (Labour conventions) (JCPC 1937) – narrow interpretation of POGGReference about the validity of the Limitation of Hours Work Act, The Weekly Rest in Industrial Undertakings Act, and the Minimum Wages Act....Argument #1: federal statutes enacted to implement Canada's treaty obligations...feds argued, among other things, that they have jurisdiction over matters contained in international treaties the fed executive has entered into...even if otherwise the matters fall within provincial jurisdiction... (treaties must be enacted by statute). Argument is: If Federal government signs on to a treaty, it gets jurisdiction to enact this.JCPC rejects this argument...stating that "the Dominion cannot, merely by making promises to foreign countries, clothe itself with legislative authority inconsistent with the constitution which gave it birth"Argument #2: feds also argue that jurisdiction didn't flow only from treaty-making power but also from fact that legislation concerned matters of such general importance as to have attained "such dimensions as to affect the body politic" or to have "become matter of national concern". This is rejected soundly by the Court.The Court states that line of cases which refer to such things as "abnormal circumstances", "exceptional conditions", standard of necessity", "extraordinary peril to the national life of Canada", an "epidemic of pestilence" are the conditions when fed gov't can override normal distribution of powers in Constitution. – These are things under which the government can use POGG"While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure."AG Canada v. AG Ontario (The Employment and Social Insurance Act) (JCPC 1937) - narrow  Federal government trying to mitigate harsh economic circumstances  Validity of fed Employment and Social Insurance Act in question...unemployment insurance....JCPC rejects argument that within fed jurisdiction because of special importance of unemployment insurance in Canada...points to facts that present Act does not purport to deal with any special emergency but refers to general world-side conditions, its operations are intended to be permanent and Ct does not accept existence of any special emergency.From these cases see two things, then:1. rejection of notion of national concern to locate legislation within opening general words of s. 91 2. Conditions for application of POGG emergency power are as follows...situation must be exceptional or abnormal, must be a special emergency, legislation must be temporary rather than 5 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition permanent...address emergency then cease to operate...also looks like the onus will be on the government to prove that an emergency exists...These decisions came under heavy criticism by leading academics – 1. POGG was supposed to address issues of national concern. a. As a matter of policy, this had to be a wrong interpretation of the BNA act; the constitution should allow national attention to poverty and suffering that is going on. 2. JCPC wrong on its own terms. If this isn’t a national emergency, what is???Argued Russell was successful because it dealt with emergency of temperance. Only can use POGG for emergency of the direst sorts.The exception to this negative attitude toward the expansion of POGG was wartime legislation...was usually sustained under an emergency justification...we see this in the Japanese Canadians case; more latitude given to POGGCo-operative Committee on Japanese Canadians (JCPC 1945) – emergency branch  Case arose in context of one of most shameful moments in Canada's history—the internment and deportation of Japanese Canadians...see this history recounted in the Ujimoto excerpt...  related to orders-in-council Dec. 15, 1945...end of War...deport people of Japanese ancestry falling into certain classes... o Challenge in courts: ultra vires federal government? . Argued no longer remained a federal power . War was over when this was made. . Is this still an emergency? o purported to have been made under the authority of the War Measures Act, passed by Parliament in 1914 which provides that proclamation by fed government conclusive evidence that war, invasion, insurrection exists...continued until further proclamation that no longer made...  Dec. 28, 1945, gov't passed new order pursuant to national Emergency Transitional Powers Act providing that all orders made under War Measures Act should continue in force...so that orders in council are now in force by virtue of the National Emergency Transitional Powers Act  JCPC upholds the orders in council...upholds under POGG...in so doing revives notion of fed emergency power...--Three factors stipulated: 1. would need very clear evidence that an emergency has not arisen or that the emergency no longer exists is required to justify the judiciary overruling Parliament that exceptional measures are required...onus put on complainant...deferential stance of the JCPC 2. not for judiciary to consider the wisdom or propriety of policy in emergency legislation...exclusively a matter for Parliament (so not consideration of the racist undertones) 3. nor will judiciary be concerned with whether legislation will be effective so, to sum up our discussion to this point....wartime emergency cases remained exceptions to general restricting of fed emergency power under POGG...no exception to denial of national concern branch6 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Canada Temperance Federation (JCPC 1946) – watershed case  expansion of POGG  Dealt with the same fed. temperance legislation upheld in Russell...was a direct challenge to Russell—challenger sought to have the Ct overrule Russell...made two arguments: . Russell was wrong because not based on emergency . Or, case wrong because if it was based on emergency, the emergency of drunkenness was now overCourt surprised everyone by refusing to overrule Russell...went on to say that POGG power not confined to emergencies...Russell not about a national emergency...court in this case stated that if the subject matter of the legislation goes beyond the local or provincial concern or interests must from its inherent nature be the concern of the nation as a whole, then it will fall within the federal POGG power...also expanded the scope of POGG power by recognizing the power to legislate for the prevention of an emergency...--this formed the basis for a number of cases in the seventies handed down by the SCC, now the final ct of appeal, which consolidated the national dimensions branch of POGG...so that in fact it began to play a larger role than the emergency branch...extended to matters such as aeronautics, the national capital commission...Anti-Inflation CaseReference re: Anti Inflation o Wage and price controls issued by Federal Government; Set caps on wages, prices; Applied to federal employees, employers of over 500; construction>20 employees; Provincial governments could opt in so act would apply to their employees; All provinces except BC and Sask (NDP governments) did opt in; Broad applicability o AG of Can argued statute addressed issue of national concern . No mention of emergency in this legislation . SCC decided it was a power of POGG - emergency o Temporary o Purpose was stated to control runaway inflation o Federal white paper preceded legislation – explained o Preamble “serious national concern” o Act clearly affects matter that would otherwise fall under provincial jurisdiction  SCC o Inflation = national emergency o Where are the judges on these issues . Laskin (+3) – support conclusion it’s legitimate  emergency  Sets up fairly easy test for Federal Government seeking to put leg. under POGG  Parliament must have rational basis for concluding there is a national emergency (easy standard to meet) . External evidence: white papers, etc. – (somewhat unusual) . Rational Parliamentarian – key because most experts said it wasn’t a national emergency, but was still rational . Burden lies with challenger to show wasn’t rational . Richie (+2) – joins Laskin in majority  Challenger must provide clear evidence that there ISN’T an emergency . Beetz (+1) – dissent  rejects BOTH national concern and emergency branch for this legislation7 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition National Concern = National DimensionsSWINTON ARTICLE  differences between approaches of Laskin and Beetz)  Laskin Decision  majority / law (Laskin is CENTRALIST, wants to expand federal jurisdiction)  Richie judgement  onus is on challenger to show NOT a national emergency  Beetz  dissent (Beetz wants strong PROVINCIAL jurisdiction, doesn’t want to allow POGG to be way for federal government to encroach large areas of provincial jurisdiction)Eight points about Laskin decision (what legislation needs and doesn’t need to be valid to be POGG under emergency branch – “spotty” coverage of national emergency)1. Merely finding that rational politician would think there’s an emergency 2. Reduced sense of emergency – “crisis legislation”; doesn’t have to be a particular kind of crisis (not war, pestilence, famine as before) a. Critics: significant difference between crisis and emergency b. Economic crisis is sufficient 3. Doesn’t matter if legislation addresses only a SMALL part of the emergency 4. Doesn’t matter if parts of scheme will be enforced only if PROVINCES agree to it 5. Doesn’t matter that nowhere in PREAMBLE is “emergency” mentioned 6. Doesn’t matter if Parliament didn’t act IMMEDIATELY 7. Doesn’t matter if legislation looks as if it won’t effectively address PROBLEM 8. Must be temporary – emergency is necessarily temporary; infringement on provincial powerLaskin doesn’t talk about National Concern – he already decided issueBeetz – DISSENT Laskin has made it too easy for Federal govt. to declare national emergency- Accepts that there are sometimes national concerns, emergencies; these are NOT THE SAME - National Concern branch works as if new subject is added to S. 91 o Adds that subject matter PERMANENTLY o Once matter is located under national concern, it is there forever o Emergency power ISN’T permanent, though – it is revoked when emergency is over - Important for criteria that are relevant in deciding when to use this emergency power o Power is limitless, but temporary, so important that there be CLEAR basis for holding there’s an emergency, and that the power be temporary - Need to be careful attention by court on what effect on power there is with national concern branch legislation o Need limits, since it’s permanent o Limitless grab of provincial power - These two branches are different, so the approach is different - Beetz argues only in most obvious cases (e.g. war) can court ASSUME there is an emergency underlying legislation, so there must be something SAID in legislation that says so. o Can’t just use normal language and have it interpreted as such o Economic emergency may suffice, but need to declare this is an emergency in the legislation8 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o Mention of “serious national concern” in preamble doesn’t meet that requirement o Legislation must be TEMPORARY . This legislation may be extended, but definitely must not be permanent. - After Anti-inflation, seems court is following Beetz’s requirements (see note, p. 301)Beetz on NATIONAL CONCERN BRANCH- Beetz: very restrictive interpretation of national concern branch - First time that court set out EXPLICIT CRITERIA for using national concern branch of poggThree criteria for using national branch – (subject matter must have 3 characteristics  NARROW TEST)1. Subject matter has to be NEW (like aeronautics, radio) ; inflation is not new 2. Subject has to have CLEAR BOUNDARY to retain its distinct form and not be muddy (unity and indivisibility); inflation is muddy 3. Must effectively NOT SWALLOW UP provincial power; inflation does thisSo, inflation meets NONE of these criteria, and isn’t a national concern.IMPACTS OF ANTI-INFLATION CASE - Use of extrinsic evidence in deciding caseNATIONAL CONCERN after Anti-inflation - Application of criteria is difficult in practice (see Crown Zellerbach)R v. Crown Zellerbach Canada Ltd. (SCC 1988) – important case for insight into national concern  who has jurisdiction over environmental regulation  Traditionally, environmental regulation is Property and Civil Rights (provincial); Increased calls for national, international regulation  CZ logs in Beaver Cove, dredges & dumps waste in Beaver Cove  Never left provincial waters, no evidence it affected open waters, navigation, other federal area of jurisdiction. Charged federally with dumping (covers waste that’s dumped in the Sea). What’s covered by the term “sea”? Can federal government, through this statute, prohibit dumping in provincial waters? o Province argues law is overly broad and grabs too much provincial jurisdiction; court should introduce an “Interjurisdictional immunity” for the provinces in this area. o AG of Canada argues pith and substance is MARINE POLLUTION; this is a single matter of national concern falling under POGG – broadest grant of federal jurisdiction o Didn’t try to fit it into another existing power, which would have been lessHow does the court decide this (Le Dain) 1. Pith and substance analysis – legislation catches all dumping of substances, not just pollution; dominant characteristic is marine pollution  protecting environment o Accepted because want to stop dumping before it happens, so don’t find something pollutes later. 2. What are the elements of National Concern branch (these are tests that determine the SCOPE of POGG Head of Power)? o 4 descriptions of National Concern now (compare to Beetz’s three in Anti-inflation) . National Concern doctrine is separate and distinct from Emergency doctrine . Applies to NEW matters which did not exist at time of Confederation (1867) AND matters which were originally provincial, but have NOW BECOME matters of national concern9 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition . Singleness, distinctiveness, unity that distinguishes it from provincial matters . Consider extra-provincial impact that would happen if province failed to legislate in this area – Provincial Inability Test o Problem with point 3 . Impossible to control pollution in one set of waters without controlling it in the other  waters mingle . Impossible to be distinct geographically, but Le Dain defines unity as SALT water vs. FRESH water  distinctive unity o Also, re: point 4 – there would be external effects outside of the province if failed to legislate 3. So, it’s National Concern 4. La Forest (DISSENT) – Act is unconstitutional o Act on which this case is based took place SOLELY in provincial jurisdiction o Opposite reasoning of being able to draw distinctiveness . Waters mingle, as Le Dain said, but this means it’s LIMITLESS . Danger of incursions into provincial jurisdiction (such as hotels on the seashore) . No real distinction between salt and fresh water (think a river dumping into a bay) . Collection of separate activities – marine pollution is not new / wasn’t unknown to framers in 1867 / comes under other heads of power / no provincial inability o Conceptual distinctiveness – can you tell where Federal jurisdiction would stop? o Different ideas about what “unity” means o Cautious stance of BeetzFriends of the Oldman River Society v. Canada (1992 SCC) - Has the environment been given to the federal government?- need an environmental assessment for a provincial dam project; Alberta says this is outside of federal jurisdiction - La Forest says environment is AGGREGATE of many jurisdictions (provincial and federal) that touches on several heads of power; depends on what the subject is o Says Crown Zellerbach is about MARINE POLLUTION, not the environment o CZ has nothing to say about jurisdiction about the environment, so doesn’t decide this issue o Must be noted that the exercise of legislated power as concerns the environment must be located in a head of power o Rejects notion of Provincial Interjurisdictional Immunity; talks about incidental effects, spillover o Upheld federal environmental regulation in this case, but only with things already determined to be impinging on a federal jurisdictionChapter 14 – Aboriginal Peoples- S. 91(24) – Federal Jurisdiction over Indians o Indians o “Lands reserved for the Indians” o Federal jurisdiction is pretty straightforward o What isn’t clear is the provincial jurisdiction o When can and can’t a province pass a law that affects a First Nations people? - Potential character of Provincial laws (4 kinds) o “Singles out” “indians”  unconstitutional because impacts immunized federal core10 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o “General application” (applies to everyone in province) that has incidental effects on “Indians” without affecting “indianness” as defined in immunized federal core  constitutional (under incidental effects of pith and substance) o “General application” with incidental effects that touch on “indianness”  unconstitutional under IJI o “General application” that touches on “indianness” that get referentially incorporated by s. 88 instead of being read down by IJI o o Native peoples live in provincial jurisdiction – federal jurisdiction takes place on provincial land for the most partSection 88 – referential incorporationIndian Act, R.S.C. 1985, c. I-5, s. 88LEGAL RIGHTSGeneral provincial laws applicable to Indians88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or any other, rule, regulation or bylaw made thereunder, and except to the extent that those laws make provision for any matter for which provision is made by or under this Act. R.S., c. I-6, s. 88. Anticipatory referential incorporation – any future laws that fall into these terms will fall under this act also.  Court wasn’t clear what this said when enacted o Did it just repeat #3 above? General application rule with Indian-ness o Did it do something different o In Natural Parents, Court splits  What did Court consider? o “subject to terms of any treaty and any other Act of Parliament” o “Except to the extent that those laws are inconsistent” / “except to the extent that those laws make provisions for any matter for which provision is made by or under this Act” Kruger and al. v. The Queen, [1978] 1 S.C.R.  was a decision by the Supreme Court of Canada on the relationship between the Indian Act and provincial game laws. The Court found that the Indian Act's statement that provincial laws may apply to Aboriginal peoples in Canada as long as they apply to other people protects laws even if these laws affect Aboriginals more than others.Dick v. The Queen (1985 SCC)- Self-governance issues raised – first nations autonomy o ∆ Charged with hunting off season, fined o Argued that IJI stands and s. 88 doesn’t stand11 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o Obstacles . S. 88 doesn’t do anything, but previous decision Kruger  wildlife act doesn’t touch “indianness”  Argues that case can be distinguished  Does touch on indianness for his people  Lambert dissent (Court of Appeal) o 1) accepts distinction . Hunting is central to Dick’s band (this kind of evidence hadn’t been used before), but wasn’t in Kruger . IJI rules should be culturally distinctive . Beetz – accepts this for sake of argument (see p. 613)  (has to find IJI to raise the S. 88 issue, though) . Wildlife Act won’t apply of its own force o 2) Wants to get rid of intentional element . Does it “in effect” single out Indians from perspective of First Nations people? . Different from what legislature intended . This is different than usual Pith and Substance analysis that we have seen . Reads down law to create an immunity . Beetz (formalist) – refuses to give this interpretation of the law  says it is about intention to single out; test for singling out is about finding legislative intent  Finds it’s a law of general application that doesn’t single out.  Says it’s wrong to read down – absurd to strike this down because affects Indians, when it doesn’t even mention Indians. o Beetz: Section 88 doesn’t just state #3, but sets up something new . Fourth exception sets out something that wouldn’t be done  #4: Something won’t be incorporated if it already is here  Changes laws of paramountcy – eliminates dual compliance o So, must be something new  S. 88 not merely declaratory, but expands body of law applicable to Indians.  Provincial laws that affect first nations persons (that would not apply in their own force) can be included now by s. 88.  S. 88 becomes technical device that makes provincial law applicable in that it becomes, somehow, federal law . Does the provincial law touch on indianness? . If YES, S. 88 has the potential to incorporate this law, subject to the 4 exceptions of S. 88.What happened in Dick re: extinguishing of rights??? Isn’t that a province extinguishing the aboriginal hunting right? Wildlife Act applied to Dick  Fell into 3rd category  touched on ‘indianness’  read down  Fell under s.88  applied to Dick (not on own force, but because of s. 88)  Dick was never claiming an aboriginal right, only an immunity under the law o If he had, a whole process would have started to examine whether such right was extinguished o Instead, used division of powers argument12 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition4 exceptions to S. 88 – Provincial Law can’t be referentially incorporated o Can’t conflict with terms of a treaty o Can’t be referentially incorporated if in conflict with any act of Parliament (paramountcy) o Can’t be inconsistent with the Indian Act or anything written under it – rule, regulation, bylaw (paramountcy again) o Can’t touch on any matter already dealt with under Indian Act (more stringent than paramountcy  doesn’t require conflict)NOTE ON REFERENTIAL INCORPORATION AND INTER-DELEGATIONThe Dick case addresses the application of provincial wildlife regulation to aboriginal hunting practices. Although cloaked in the dry and technical language of division of powers jurisprudence, this issue goes to the heart of aboriginal struggles for survival and recognition as distinctive cultures and communities with some measure of autonomy and sovereignty. In doctrinal terms, the case turns on the meaning of section 88. Section 88 is an example of the operation of the doctrine of anticipatory incorporation by reference. In short, it operates to make provincial laws applicable as part of federal law. Read section 88 carefully and note how it states that provincial laws of general application apply to "Indians". Note also that there are a number of qualifications built into the language of section 88. The doctrine of anticipatory incorporation by reference must be understood against the backdrop of the constitutional rules about the ability of legislatures to delegate their powers. In the case of Hodge v. the Queen (1883) 9 App.Cas. 117, the Privy Council affirmed that the federal parliament and provincial legislatures could delegate their powers to make regulations to subordinate bodies. Indeed a subsequent case, P.E.I. Marketing Board v. Willis (1952) [1952] 2 S.C.R. 392, made it clear that provincial legislatures could delegate such powers to a federally constituted board and vice versa. This is called administrative inter-delegation and it greatly assisted the two levels of government in coordinating their regulation of activities such as trade over which jurisdiction was sometimes inconveniently divided. Thus, for example, even though under the constitutional division of powers only the federal Parliament can make laws about the marketing of PEI potatoes beyond provincial borders, it is acceptable for Parliament to delegate that power to a board or agency set up by PEI to regulate the marketing of potatoes within PEI. You might think that if the federal government can delegate its powers to provincially constituted boards and vice versa, then delegation should be permitted when it is directly to a legislature or Parliament. However, in the Nova Scotia Inter-delegation Case (A.-G. N.S. v. A.-G. Can.) [1951] S.C.R. 31, the Supreme Court of Canada made it clear that provincial legislatures could not delegate any part of their law-making powers to the federal Parliament nor vice versa. This is called legislative inter-delegation and, unlike administrative inter-delegation, it is unconstitutional. The reasons given for finding legislative inter-delegation unconstitutional were that legislative bodies should not be able to alter the scheme of the division of powers without clear constitutional authority.Peter Hogg summarizes the doctrine of referential incorporation and points out how difficult it is to distinguish it from legislative inter-delegation in the following excerpt:Peter Hogg, Constitutional Law of Canada, 3d ed. – incorporation by reference13 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition(a) Incorporation by referenceIncorporation by reference is a technique which is occasionally used by legislative bodies, especially where it is desired to enact the same law as another jurisdiction. Instead of repeating in full the desired rules, the draftsman may simply incorporate by reference, or adopt, the rules of another jurisdiction. The leading case on the validity of this technique is A.-G. Ont. v. Scott (1956), where the Supreme Court of Canada upheld an Ontario statute which provided for the enforcement in Ontario of orders to pay maintenance obtained in England (and some other foreign jurisdictions) by wives who were resident in England against husbands who were resident in Ontario. Section 5(2) of the Ontario statute provided that in proceedings to enforce a foreign maintenance order the husband was entitled "to raise any defence that he might have raised in the original proceedings [in England] had he been a party thereto". In other words, the Ontario Legislature, instead of itself specifying the defences which were available in Ontario to the husband, was accepting whatever defences were specified by the Parliament of the United Kingdom. The Supreme Court of Canada held that this provision was valid. Their lordships denied that there was a delegation involved; all that was involved was the incorporation or adoption of certain English laws into Ontario law.(b) Anticipatory incorporation by referenceIn Scott, the Court recognized, but did not attach particular importance to, the fact that the Ontario statute adopted not only the English rules in existence at the time of the enactment of the Ontario statute, but the English rules in existence from time to time in the future. Yet the "anticipatory" character of the incorporation makes the Ontario statute difficult to distinguish from a delegation. The effect of the Ontario statute is that, whenever the Parliament of the United Kingdom alters the laws of England governing defences to maintenance applications, it also alters the law of Ontario. It is important to notice, however, that even if Scott were treated as a case of delegation, the result would not necessarily be wrong. As Laskin pointed out in his casebook, the Nova Scotia Inter-delegation case did not say anything about the validity of a delegation to a non-Canadian legislative body. Since such a delegation would not disturb the federal distribution of powers, one might well assume that the Hodge doctrine would operate to validate the delegation. The distinction between anticipatory incorporation and delegation would only become significant if it were the enactments of another Canadian legislative body which had been incorporated.Provincial Extinguishment of Aboriginal Title In Delgamuukw, the province tried to argue that the Colonial administration of British Columbia had extinguished Aboriginal title through legislation and land grants prior to British Columbia joining Canada in 1871.. The Court did not agree, and went on to say that not only had the province not extinguished Aboriginal title, but that following the patriation of the Constitution Act of 1982, only the federal government had the authority to extinguish Aboriginal title. This point is significant because it categorically dismisses the possibility of provinces unilaterally extinguishing Aboriginal title. R. v. Delgamuuk (1997) – jurisdiction over extinguishment of aboriginal rights Did provinces ever have jurisdiction to extinguish aboriginal rights?  La Mer – Federal government has jurisdiction  Two heads of power: Indians, lands reserved for Indians o Says covers all lands pursuant to aboriginal title o Federal government alone has power to extinguish o But, underlying title rests with Provincial government  if extinguished, title goes to province14 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Lamer's majority ruling in the Supreme Court's decisions of Van der Peet and Delgamuukw have clarified how an Aboriginal right or title may be extinguished. Essentially, extinguishment of an Aboriginal right occurs through agreement through treaty, or if the Crown can show that there has been legislation passed, prior to the enactment of the Canadian Constitution Act, 1982, that has the clear and plain intent of extinguishing these rights (Van der Peet p. 226). This later ability to extinguish Aboriginal rights is based on the thesis that the Crown acquired such a right when it became sovereign over the land when it was 'discovered'. This position has been critiqued as being ethnocentric by simply legalizing European constructions of history. (Doyle-Bedwell 1992). Under Lamer's ruling a strong right like one to sovereignty is "extinguished merely by the act of establishing a European regime, regardless of the original inhabitants and their thoughts, beliefs, and laws" (ibid.:202). Some legal scholars have suggested that type of power of extinguishment is an inappropriate view of the nature of Crown sovereignty, which is rather merely the vested or exclusive right to acquire native title. The Crown can not, under the later interpretation, unilaterally extinguish rights or title without the consent of and compensation to the Aboriginal community in question (Macklem 1991:406). Thus, Lamer is contradictory, by on one hand insisting on consultation and consultation in negotiating treaties, while on the other recognizing a sovereign right of the Crown to extinguish rights and title with clear and plain intent. Federal and Provincial governments have pursued a policy which asks Aboriginal people to extinguish their general or undefined rights, for specific rights outlined in a treaty or settlement (Asch and Zlotkin 1997:213). When challenged in court, the Crown has also argued, as in Delgamuukw, that Aboriginal rights have been extinguished by prior laws (Foster 1991:345-7). Though the later position has been rejected by the Supreme Court for Aboriginal people in British Columbia through Delgamuukw on the basis of the strict historical test that extinguishment legislation must have 'clear and plain intent', the former position continues to be a central to the Crown's desire in negotiating treaties.R. v. Morris (2006 SCC) – aboriginal treaty rights and s.88  Aboriginal accused hunting at night; arrested and charged under BC Wildlife Act  Deschamps and Abella: right to hunt protected by treaty, but hunting dangerously prohibited; night hunting not per se dangerous  Provincial law banning hunting are valid, but touch on “Indianness”  so, laws of general application that are inapplicable to Indians; may be incorporated by s.88 unless they directly conflict with a treaty right  In this case, prima facie infringement of treaty right, so CANNOT be incorporated by s.88  McLachlin (dissent): valid provincial legislation that falls outside of internal limits to treaty; no intrusion on federal jurisdiction  no s.88 needed; no paramountcy  Night hunting is dangerous, provincial leg. limits danger  legitimate exercise of provincial authority; falls outside of treaty rightAfter 1982, Federal Govt. must show under S. 35 of Charter that right can justifiably be limitedChapter 11 - Criminal Law Power- Simeon’s “Community” – who gets to decide these moral issues? - Who gets to set penalties?15 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Deciding where these issues fall – federal or provincialSection 91(27) gives the feds power over "The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal matters".Typically, the choice lies between the fed class of criminal law and one of two general prov classes: 1. S. 92(13) Property and Civil Rights in the Province, and 2. S. 92(16) Generally all matters of a merely local or private nature...also s. 92 (7) hospitals in the Morgenthaler Cases...Cases of fed leg...set out the scope of the fed criminal power :Dairy Industries Act - fed gov't argues unsuccessfully that its ban on the manufacture, sale and possession of non-dairy butter substitutes is permissible under the criminal law powerRJR MacDonald: federal gov't argues successfully that restrictions on tobacco advertising are permissible under criminal law powerR. v. Hydro-Québec: fed Environmental Protection Act not upheld under fed criminal law powerFirearm Reference: Alberta gov't unsuccessful in arguing that Fed Firearms Act is ultra vires fed gov'tCases dealing with provincial legislation:McNeil: prov gov't argues successfully that regulation of obscene films is a matter of a merely private and local nature and of property and civil rights and does no entrench on fed criminal law jurisdictionDupond: prov gov't argues successfully that banning protest marches and demonstrations in the streets of Montreal is a matter of a local nature and does not entrench on fed criminal law powerWestendorp: Ct holds that banning street prostitution falls within the federal criminal law jurisdiction and a municipal by-law doing so is ultra viresRio: Province argues successfully that a refusal to grant liquor licences to establishments with nude dancing relates to property, civil rights and matters of a local nature. Thus, it does not entrench on criminal law power.Morgentaler: prov unsuccessful in arguing that restrictions on abortion fall within prov jurisdiction over healthDichotomies between Criminal Law and Civil RightsCriminal Law Civil Rights, Property, Local, Private s. 91(27) ss. 92(13), 92(16)Prohibition PreventionPenal Regulatory (prior restraint)Punishment Licence denied16 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd editionPublic Property Private Property interest (must be more than a tenuous connection to property interest)Cases of Federal LegislationDairy Industry Act (1949 SCC; aff. PC 1951) Margarine Reference – need: criminal purpose + prohibition and penalty RATIO: need for a criminal purpose, plus prohibition and penalty o Prior to this, prohibition and penalty was sufficient  Is prohibition of butter substitutes criminal law?  What is the matter? prohibition of manufacture & ban on importation  Criteria that define criminal law: o PROHIBITION of MANUFACTURE . Prohibition, with penal sanctions directed against some evil or injurious or undesirable effect upon the public; examples of public peace, order, security, health, morality… could also protect economic end  property . The present protectionist legislation does not fit into these criteria. It is not directed at protecting the public in general, but rather, at protecting a particular interest group— butter manufacturers o Ban On Importation . Matter is foreign trade . Within federal jurisdiction over foreign relations, not criminal law...uphold prohibition on importation under fed power to regulate foreign trade...Labatt case, also mentioned in your notes in casebook, is another example where legislation is not upheld under criminal law power as there is not a criminal public purpose attached to legislation about beer...no consumer protection purpose as not directed at adulteration of food or false or misleading advertising or labeling...See also note on p. 392, Boggs (1981) and Dominion Stores (1980) cases where no valid criminal purpose foundRJR MacDonald (1995 SCC) – confirms broad scope for criminal law power Tobacco Products Control Act (1988) prohibited the advertisement by publication, broadcast or otherwise of tobacco products offered for sale in Canada; imposed restrictions on various forms of promotion and required warnings to be placed on cigarette packaging; A person who contravenes these restrictions is guilty of an offence punishable on summary or indictable terms; Penalties range from minimal fines to two years in prison.  Tobacco companies challenged law, arguing intrusion into prov jurisdiction and contrary to Charter  Court upheld the regulations in terms of the division of powers argument. Found Charter problems with some of the provisions  Court looks at the legal effects of the law—the various restrictions it imposes—as well as social scientific evidence on the incidence and effects of tobacco use.  Court also describes the nature of a "matter" that falls within the criminal law class.  The evil the law is directed at is detrimental health effects caused by tobacco consumption  concern for public health.  Does the matter fall within the criminal law class? Yes. The Court emphasizes the broad scope of the criminal law power...can certainly cover concern with public health...17 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  This paired with prohibition accompanied by penal sanctions means the legislation fits within criminal law power...prohibition and penalty are form requirements, purpose is a content requirement...  Note…tobacco advertising is not such a traditional criminal law issue. This was an argument raised by the tobacco companies. The Court responds by holding it is not necessary that a matter have an affinity with a traditional criminal law concern...criminal law power is not frozen in time...can create new crimes...  Also the gov’t should be allowed to choose a circuitous path to accomplish goals, so can criminalize an activity ancillary to the criminal evil...advertising instead of consumption or production  Court also rejects argument that exemptions signal that is regulatory not criminal...exemptions mean that same act can be legal for some but illegal for others...Court says that criminal law may validly contain exemptions without losing criminal status...exemptions can help to define the crime...delineate limitsColourability  The companies also tried to argue that the legislation was a colourable invasion of provincial authority over advertising and the tobacco industry.  The Court rejects this argument on the ground that if Parl was seeking to override prov jurisdiction, it would have passed different legislation...leg applying to advertising in more than one industry, or provisions that cover full regulation of tobacco industry in its production, pricing, labour relations...no evidence that Parliament had an ulterior motive or attempting to intrude unjustifiably upon prov powers...so different from Margarine Reference as pith & substance here is curtailing a public evil not regulating an industry...  So the Court holds that the law is a valid exercise of the criminal law power—although ultimately contrary to the CharterMajor's dissent: Holds that Parl not entitled under criminal law to prohibit all advertising and promotion of tobacco products and restrict use of tobacco trademarks  Criminal purpose must target conduct that is sufficiently grave or serious...conduct which interferes with the proper functioning of society or undermines safety and security of society...lesser threats do not fall within the criminal law...addressed through non-criminal regulation  Need an affinity with traditional criminal law concern...starting point for determining if within criminal power  Tobacco advertising undesirable form of expression but not sufficiently undesirable to be criminal...especially where not criminalized underlying activity of tobacco use  Exemptions are a factor in concluding that conduct not truly criminal...especially when broadly based  Plus how can it be a significant harm when still foreign advertising allowed to enter  Not valid criminal law legislation...R. v. Hydro Quebec (1997 SCC) – Act must contain prohibition Hydro Quebec charged with violating federal order on PCB emissions under Canadian Environmental; Protection Act, which has process for regulating toxic substances; ∆ claimed certain sections were ultra vires Fed.  Lamer and Iacobucci write a dissenting judgment, finding no basis for the legislation in either the criminal law or POGG power o S. 91(24) grants Parl. broad and exclusive power to legislate in relation to criminal law.18 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o power has traditionally been construed generously but has 3 requirements: 1) prohibition backed by a 2) penalty 3)legitimate public purpose o leg doesn’t meet these: environmental protection is a legitimate public purpose but the Act is more regulation than prohibition o disagrees with La F that the leg can be supported in relation to health…but agree that the protection of environment is a legitimate criminal public purpose, analogous to those cited in the Margarine Reference o But…the Act does not contain a prohibition…the distinction between a regulation and a prohibition is “more art than science” o criminal law can mix exemption (regulatory element) with prohibitions such as was done in RJR MacDonald Regulatory or Criminal law? Following factors are relevant:1. fundamentally regulatory…look at the exemption/regulation in context 2. the more elaborate a regulatory scheme is, the more likely it is regulatory than criminal 3. exemption relates to the prohibitions…this was the case in RJR but not the case here 4. criminal law ordinarily contains a prohibition that is to be self-applied, doesn’t normally require administrative agency or official intervention prior to application of the prohibition…this is not the case here…no offence in this case until agency intervenes 5. equivalency provisions ( fed exempt prov if equivalent prov leg in place) unusual—prov only authority to pass regulatory legislation in this regard…raises presumption that fed law is also regulatory improperly 6. looks more like control of substances, not prohibition as there is no general prohibition 7. RJR MacDonald covered a narrow filed of activity, here much broader concern…not allow federal jurisdiction over this wide field as environment is shared jurisdiction…impinge on prov jurisdiction… Not under National Concern Branch of POGG: fails test of “singleness, distinctiveness and indivisibility: from Crown Zellerbach  LaForest (majority) here…criminal law power is plenary in nature, with sole exception of colourability  need legitimate public purpose…listed purposes from Margarine Reference are not exhaustive  accepts that pollution prevention (or protection of a clean environment) is such a purpose… fundamental social value  concludes this is criminal law power…works through discrete prohibitions, has penal sanction….doesn’t encroach on prov. jurisdiction…prov can still leg over pollution under s. 92Reference re Firearms Act (2000 SCC)  Challenge to the Firearms Act, gun control law, very controversially politically, challenged by Alberta, using provincial reference procedures, appealed to SCC...  Legitimacy of judicial review – courts want to distinguish their jobs from those of legislators  issue before the Ct is not the desirability, fairness, or effectiveness of the law...only issue Ct can examine is question of constitutional authority  Held: criminal law...law is in pith and substance about public safety through controlling access to guns through prohibitions and penalties...regulatory aspects are secondary; Fits into three requirements for criminal law Doesn’t matter that it is complex (would look more like regulation argued prov.) Province argues no different than provincial regulation schemes such as automobile or land title registries; Court says PURPOSE behind regulation is different  C. Is it an intrusion into prov powers? Prov. says it inappropriately trenches on provincial powers  if upheld it will upset balance of federalism19 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o only incidental effects on province o double aspect field (not entry into new field)Cases dealing with provincial legislation:  Why? Federal jurisdiction over issue, but they don’t want to regulate locally for some reason  Provincial jurisdiction over Property and Civil Rights o See Parsons case  economic o Also, jurisdiction over local and private nature  Provinces must have power to SANCTION bad behaviour  S. 92(15)  provinces allowed to undertake penal sanctions, but ANCILLARY (subordinate) power o Power must be anchored in some other section (e.g. 92(13) or 92(16)  Raises some issues o Ancillary power isn’t a big issue where legislation looks clearly regulatory o But, issue arises if punishment of activity that is injurious to public  reserved for federal government under Criminal law . If dominant characteristic is regulation of public order, safety, etc. will likely be criminal . E.g. regulation of drunken driving MUST have purpose highway regulation  If tries to control dangerous conduct, then Criminal  Court looks at o FORM: Preventative, not Penal? o PURPOSE: Regulation of private matters or property vs. moral behaviour?Re Nova Scotia Board of Censors v. McNeil (1978 SCC)  Objects to fact that he is prevented from seeing film in his community;  Last Tango in Paris  seen as being risqué in its time; shown all over Canada, but not in Nova Scotia. Prevented film from being shown  PRIOR RESTRAINT (as opposed to charge, conviction, penalty); Provincial statute: Theatre and Amusements Act  If legislation has regulation of public morality as matter, then not provincial  Provincial government argues successfully that regulation of obscene films is a matter of a merely private and local nature and of property and civil rights and does no entrench on fed criminal law jurisdiction o WHY did they determine this? . Concerned with PRIVATE business, not morality  regulation of transactions of film industry . Prevention of activity, not prohibiting activity  Laskin (417) – prevention  can’t show this film. If so, punishment.  Distinction Prevention: first part of order has no punishment  Laskin (dissent)  no difference between the two; order has no penalty, but if there’s a breach then there’s a penalty  Dissatisfaction with majority ruling: that upheld Provincial statute o Although a prohibition is involved + penalty  prohibition and penalty are designed to enforce adherence to ADMINISTRATIVE PROCESS. o Important for sake of classification  preventing showing, not punishing a showing o Differences : public v. private property; punishment v. regulatory; etc. o Court says . Doesn’t attach punishment to order that tribunal issues20 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition . Regulation of a business wholly situate in a province  Province has authority over these kind of transactions . Regulation of business, NOT moral concern o There is obscenity leg. in criminal code (Last Tango unsuccessfully prosecuted) o Court says: film regulation has DOUBLE ASPECT – federal and provincial . 1) Provincial – prior restraint that regulates private business and is preventative . 2) Federal – criminal prohibition that regulates public morality + punishment o Laskin doesn’t see the difference  punishment has no anchor in provincial power o If double aspect  look at CONFLICT (paramountcy – dual compliance) o But, reg.32  prohibited indecent and improper performance in theatres . Similar to federal legislation in criminal code . Court finds that this is ultra vires (but severable from rest of legislation) . Language of reg. 32 is similar to criminal code language  Court takes this as presumption - inference that it is treading on federal (remember Morgentaler) . See notes p. 420 – discussion emphasizes Laskin’s concerns about civil libertiesAG Canada v. Dupond (SCC 1978) : court draws fine distinctions to delineate federal and provincial powers prov gov't argues successfully that banning protest marches and demonstrations in the streets of Montreal is a matter of a local nature and does not entrench on fed criminal law power  Said : “necessary to protect public peace and order”; Had been violent and unruly demonstrations in past; Imprisonment up to 60 days; fine up to $100  π Alleged ultra vires jurisdiction of city  entrenchment of Federal power  Court said wasn’t infringement of federal power (similar to McNeil) o Extension of McNeil  concerned with public domain; local matter; Falls within provincial jurisdiction o Preventative  not like criminal code for breach of peace  Strong Laskin dissent o mini-criminal code; draconian nature o Bars all gatherings, even those of innocent nature  threat to civil liberties o Laskin is civil libertarian  understood federal legislation as barring this type of provincial legislation o see Safe streets act  limit hanging out; aggressive panhandling o Implied Bill of Rights . Guarantees of essential freedoms in BNA Act (speech, assembly, etc.)Westendorp v. The Queen (1983 SCC) - Reverses trend of McNeil and Dupond Westendorp approached by police for sex; charged under bylaw; Regulation in section titled “use of streets”; bans prostitution, soliciting for prostitution; punishment of prison, fine  Laskin (unanimous): Court holds that banning street prostitution falls within the federal criminal law jurisdiction and a municipal by-law doing so is ultra vires o S. 61 is severable and MUST be severed o “Specious” nature of s. 61  illegitimate intent in creating this . Bylaw is activated by what person says or PURPOSE that person on street . In pith and substance, about control of prostitution – not about streets . Had nothing to do with regulation of PROPERTY . Attacks prostitution as evil addressed, NOT public nuisance  Appellate Court found it was about nuisance, but SCC doesn’t accept this21 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  SCC says that if prostitution is DOUBLE ASPECT would UNRAVEL division of power and put us on slippery slope  How similar to Dupond? Both Dealing with space, Regulatory, Both preventative  Why is this decision different than Dupond (distinguished on facts)? o Legislation in Dupond is temporary; Dupond dealt with parades and assemblies  Laskin effectively gives NARROW READING to DupondRio Hotel Ltd. v. New Brunswick (Liquor Licensing Board) (1987 SCC)  Province argues successfully that a refusal to grant liquor licenses to establishments with nude dancing relates to property, civil rights and matters of a local nature. Thus, it does not entrench on criminal law power  Challenges – saying moral matter  federal  Dickson: o Pith and substance is not regulation of public morality, but sale and marketing of liquor o Regulates only those forms of entertainment used as MARKETING tools to promote liquor sales o Regulatory NOT penal  not penalties, only revocation of license o Like McNeil – even though subject has moral undertones, if the regulation is regulatory and not penal it will be okay - If private property regulation, would have anchor in provincial; State intervention BEFOREHAND, not after; Private not public; Fits into s. 92(16) o Also a DOUBLE ASPECT – nudity covered in criminal code o Not a problem for the court though  both valid & no conflict . In this context  Provincial: regulation of liquor  Federal: public morality R. v. Morgentaler (1993 SCC)  prov unsuccessful in arguing that restrictions on abortion fall within prov jurisdiction over health; Maps tightly onto what the criminal code does (see above)Trade and Commerce Powers (s. 91) T and C Read down at first, now being expanded  Parsons – Court reduced power to two branches o Inter-provincial / International Trade o General Trade and Commerce Branch  What authority comes from each  After 1949 (end of PC), Court expands power of first branch o Klassen o Caloil  These two cases allow gov’t to pass laws that affect commerce wholly situate in province o Seen as incidental to greater purpose  Re Agricultural Marketing (1978) o Quotas, marketing scheme, dense regulatory scheme o Network of provincial and federal regulation o Upheld o Allowed federal to take  Second Branch (non-existent until 1980s) o General Motors – major piece of legislation justified under t and c 22 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o Sets out test for second branch of general trade and commerce o 5 step test o Second branch allows federal to govern where it couldn’t before re: inter-provincial, international o Covers oil, wheat, margarine – trade issues that are important to CanadaChapter 15 – Antecedents of the CharterIntroduction Background a. Petter – one of foremost critics of entrenching Charter b. Rights are brainchild of classical liberalism – critical backdrop to understanding Charter i. Other ways to organize communities – aboriginal, etc.  so, not only way to deal with rights, but for us they seem natural c. Four generations of rights i. First  civil and political rights on the possessive individual ii. Second Kinds of things important to physical and mental well-being iii. Third  important collective or community element to rights iv. Fourth  extension of rights to environment, plants, ecosystems 1. e.g. Radical legal environmentalism, animal rightsThree ways rights have been protected prior to charter i. Common law constitution ii. Rights and Federalism iii. Canadian Bill of RightsCommon Law Constitution a. Rules coming out of cases that form basis of constitutional principles b. Struggles of liberty  right to participate in gov’t; protection from excessive or arbitrary treatment by government c. Rule of Law evolved from this i. Ultimate power in society resides in law, not in rulers d. What about parliamentary supremacy i. Parliament expected to act with good faith ii. Rights are useful in interpreting legislation e. Generally judicial failure to recognize rights though (racism, etc.) i. Cases which demonstrate “common sense of elite” ii. People argue rights should challenge thisA.V. Dicey - Introduction to the Study of the Law of the Constitution, 1885 No man can suffer except for distinct breach of law  No individual is above the law  all are equally subject to the law (rule of law)  General principles of constitution flow from the decisions of the courts  evolve through common law pronouncements23 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Roncarelli v. Duplessis (1959 SCC)  Liquor license seized because he was consistently providing bail for Jehovah’s Witnesses; Premier of Quebec instructed chair to revoke liquor license; Sues Duplessis directly  Rand J. chronicles history, facts of case . Wasn’t doing anything he didn’t have liberty to do; Duplessis exercised power directly to hurt Carelli; Breach of public duty . Public Statutory Duty to act in good faith to discharge powers . No defence to argue that he has discretion  discretion in itself must be exercised in good faith, weighs things of relevance, stays within authority of office . Relies on Rule of Law – arbitrary treatment by official of private citizen . Damages awarded to Carelli . Practical effect: religious discrimination is contrary to rule of law . Also, this was about stepping into private businessAndrew Petter lecture Rights, role of courts - Formed from who we are as human beings  Progressive role of governments  politics as vehicle for progressive change  Bill of Rights  Courts read it down to nothing  In US, examples of both kinds of judicial decisions: only until governments got involved when real changes were made (racial equality)  Roe v. Wade can be read to be traditional limitation of governments  Patriation of Constitution issues o Exclusion of Quebec o Legitimacy o Had Canadians bought into Charter of Rights? o Was it proper exercise of government power  Charter o What was “equality”, “liberty”? Room to give different meanings o Court would have role to assign meanings o Did Canadians understand that they were transferring power to the courts to decide what these things mean? o Extraordinary moves by court (e.g. Motor Vehicle Reference). Did s. 7 have any substantive protection, or merely procedural? . Framers chose words “fundamental process” to limit s. 7 to procedural values . Court gave it substantive interpretation  raised question of legitimacy  Could have asked framers… . Also, decided Charter applied to corporations (privacy, etc.) o Court is CONSERVATIVE . Protect property rights . Unlikely to read into this progressive values o Bought into Charter that was neither legitimate or progressive o Cost to litigants is exorbitant . Who has money to fight for right of equality? Not the poor people . What does this say about institutional structure of courts that require this amount of money to fight for equality o Critical legal theory o Views . Outside of criminal law context (more traditional role for courts, individuals vs. state power), potential of Charter was limited24 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition . Democratic potential in politics to bring about progressive change . Charter based on indeterminate meaning of words  fundamental dishonesty o Wealthcare . Protecting rights of wealthy to get private healthcare . Also, failure to rely on traditional purposes of judicial review  Why should the court be involved in Charter issues (traditional arguments)? o Protect democratic politics  can’t trust politicians to protect democratic nature of system . Didn’t apply here, healthcare is widely debated o Protect insular minorities  majorities can abuse power . But, only minority at risk is wealthy people… . Court says they’re protecting middle class o Transcendent values  so important over time, we don’t want politics to have them in play at all . Right to life, security of person is one of those values . But, who gets this right? If it’s transcendent, shouldn’t everyone have this right?  This decision is even offensive to supporters of judicial review . Court was deciding issue with lack of information (complex issue) o Judicial review can work well in some cases . Court is persuaded through social movement (eg. formal equality) . When issue is keeping state at bay o Dialogue theory  can be used to justify ANYTHING . Court not responsible for decisions, since legislature has final word  Legislature offloads their problems on the courtsRights and Federalism a. Way in which federalism cases allow Courts to deal with these issues iii. Claim that discriminatory legislation is outside realm of provincial legislation iv. Arguments in favour of federalism come from recognition that communities should be separated in certain ways  smaller communities, local level of decision-making v. BNA Act has some rights in it  religion, education 1. s. 93  allows federal government to step in to stop discrimination vi. Second way  federalism cases used to undermine provincial legislation that is discriminatory. Argue that this type of authority falls to federal level.Union Colliery v. Bryden (1899 PC) – Dominion has jurisdiction of anything that affects aliens  Prohibition of “Chinamen”; shareholder sues that mine was violating prohibition  Privy Council (Lord Watson) – Look at s. 91 and 92; s. 92: BC has legislative authority, but s. 91 says no; Pith and Substance; scope of power; mutual modification  Scope of s. 91(25)  rights pertain AFTER they’ve been naturalized; “alien” means those who haven’t been naturalized  Dominant matter is regulation of foreign labourers, so ultra vires province  Case stands as artifact of racism  seems a pathetic way to deal with racism  About job protection, but also captures non-alien, non-naturalized citizens born here  Ryder says Union Colliery is an anomaly and is read down (politics  can’t limit right to earn a living, but can limit right to vote – see below)Cunningham v. Tomey Homma (1903 PC) – Provinces can restrict right to vote of naturalized Japanese  Electoral law of BC prohibits Japanese from voting 25 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  Lord Halsbury: province can enact an electoral law per 92(1); 91(25) reserves legislation about naturalization for Federal; a native-born Japanese would be excluded from voting; privileges of voting are independent of nationality, however. Rule allowed to standImplied Bill of Rights BNA Act imported into Canada certain implied rights that have to be observed  specifically at provincial level, but also possibly at federal  Without these, we can’t interpret the BNA Act properly  What are these rights? o Rule of law o Civil and Political Liberties (First Generation Rights): association, speech, etc.Reference re Alberta Statutes (1938 SCC)  Socred party  issue “social credit” to citizens that they must spend; impose control over banks; Wanted to pass bill that regulated press that criticized government policies and activities; can provincial government could do this?  Pith and substance = regulation of press to reduce opposition and prevent public from being misled  Provincial government was trying to revive old crime of “sedition libel”  Government is trying to amend the Criminal Code by reintroducing this offence  Found ultra vires of the province  curtailment lies ONLY with federal government  Can’t curtail freedom of discussion on matters that are essential to a democracy  Duff CJC (Duff Doctrine = implied bill of rights) : preamble of BNA  free public discussion is essential; any attempt to curtail this is repugnant to provincial government (other cases go farther and say can’t be done at federal level either)Canadian Bill of Rights (1960)  Introduced by PM John Diefenbaker  Influenced by UN, US Bill of Rights (civil liberties)  Distinctive features o Only a statute  only speaks to matters of federal nature; can it be overridden by other statutes o Was it a guide to interpretation?  Court ended up giving it a very narrow interpretation  Very difficult to show violation of BOR  Ended up being a disappointment  Still in effect – most in Charter, but BOR had o Property rights o Expansive due process clause - 2(e)R. v. Drybones (1970 SCC) – application of Bill of Rights  S. 94(b) of Indian Act said that Indian who was intoxicated off reserve was guilty of offence; Liquor Ordinance of NWT said offence for anyone to be intoxicated in public place; ∆ challenged s.94 as violating his right to equal treatment under s.1(b) of BOR: SCC dismissed appeal from Crown from acquittal  Ritchie: Bill not simply a guide to interpretation  that would be contrary to its purpose26 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Bliss v. AG Canada (1979 SCC) - Pregnancy benefits  Unemployment Insurance Act challenge  benefits for women whose employment was interrupted because of pregnancy, but imposed longer qualifying period for these benefits than other benefits; π claimed benefits, but hadn’t been working long enough to qualify  Ritchie: difference in treatment between getting benefits and not was distinguishment between pregnant and not pregnant people, so no claim of sex discrimination  Unequal treatment  fueled CharterHuman Rights Legislation see Intro to Rights Material Provide for series of protections against discrimination  Ordinary pieces of legislation  statutory  Quebec Charter  Does it cover class, poverty discrimination? Depends.  Application is broader than Charter  applies to private actors, universitiesBrooks v. Canada Safeway (1989 SCC) – human rights challenge  Challenge under provincial human rights legislation; π couldn’t qualify for sick benefits because was pregnant, not sick  Dickson: No intent to discriminate necessary  look to effects  Systemic problems  Safeway plan fails to recognize pregnancy is valid  Childbearing is important to Canadian society  costs shouldn’t fall onto one group (pregnant women)  Willingness to see pregnancy as feature of sex  rejects dichotomy of pregnancy/non p.Vriend v. Alberta (1998 SCC) – human rights as basis for suit Alberta made list prohibiting discrimination; Didn’t include sexual orientation; π got fired from religious school based on sexual orientation; tried to bring a case, but this wasn’t included in statute  Challenged Alberta Individual Rights Protection Act on s.15 of Charter; College not subject to Charter, but subject to Alta. human rights legislation  All legislation subject to Charter (any level of government)  Uses Charter to fix piece of provincial legislation so college would have to comply; SCC Read sexual orientation into the statute  Three ways case was controversial on issue of judicial review o Federalism  Superior judges – appointed by federal government  federalism issue . Changing provincial legislation o Fixing legislative omission  haven’t actively discriminated against anyone; it was an INACTION not an ACTION  Alberta govt didn’t do anything, just didn’t address it. . Positive vs. Negative rights in Charter . If you decide to step into anti-discrimination business, you must do it equally o Democracy issue  remedy of Court was that the law is changed (didn’t leave the question to the province)  read in text into the statute  Judicial Activism  Court addresses these issues in their decision; four ways of legitimacy o Charter itself is product of democratic process o Courts are reasoned, principled, constrained by constitution (law not politics) o Legislature can override courts (dialogue theory) 27 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o Really about dialogue between different branches of governmentChapter 17 – The Framework of the CharterInterpreting Rights Two general principles1) Purposive approach - What is the purpose behind what you are enacting?Hunter v. Southam (1984 SCC)  S. 8  search of newspaper offices  What the words protect can only be made after court has delineated interest right is meant to protect.  Protection from unreasonable search and seizure  Can’t simply use dictionary  interpreting constitution is “special task”: different than ordinary legislation2) Broad and Generous interpretationR. v. Big M Drug Mart (1985 SCC)  Adds to Hunter  interpretation will be broad and generous (rather than legalistic)  Want to fully grant right to citizen  Presence of S.1 dictated that this approach should be generous  government can limit right  Limitation is invoked from another section (rather than reading in internal limitations, such as US situation)Aids to interpretation1) Interpretation sections S.27  Preservation and enhancement of multicultural heritage S. 28  Rights of Charter guaranteed equally to male and female persons2) Parliamentary and Committee Debates  Though, not really coherent intention (lots of actors involved with different ideas)  give it minimal weight  Motor Vehicle Act (1985 SCC)  Adjusting to societal needs, not freezing rights in 1982  living tree3) Pre-Charter Jurisprudence – cases around Bill of Rights  Court said it won’t give too much credence to these cases, because BOR was a disaster4) International Sources  US Rights Cases  look at these cases with critical eye o Largely tend to not follow  problematic approaches  International Human Rights Legislation o Look to these for guidance; especially ones binding to Canada o Charter is assumed to conform to spirit of human rights legislation28 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o Terms must be enacted into domestic law to be in force in Canada o Baker decision taken as strongest position by Court;Charter Analysis - backgroundI. Threshold Issues: Burden on the Applicant Rights Holder (i) Does the applicant have standing? - ss. 24, 52, the trilogy, CCC (ii) Does the Charter apply; is a government actor or state action involved? s. 32II. Rights Analysis: Burden on the Applicant Rights Holder (claimant) (i) Does the applicant’s claim come within the scope of the right? a. purposive and generous interpretation of the Charter protections … (ii) Has the applicant’s right been violated by the government action? a. Purposefully violated? Effectively violated?III. Section 1 Limits Analysis: Burden on the Respondent Government Actor (i) Is the limit on rights prescribed by law? (accessibility and precision) (vagueness) (ii) Is the limit imposed because of a government objective that is pressing and substantial in a free and democratic society? (iii) Are the means chosen to accomplish the government objective proportional to that objective? (Oakes Test) – reasonable limits (a) rational connection to the objective (b) minimum impairment of the right (c) balance between deleterious effects of rights violation and importance of government objective/ balance between deleterious and salutary effects of measure IV. Remedy ss. 24, 52  court has choice of remedies, will look at context; Defining Limitations - Section 1 S. 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.Prescribed by law o Action that impinges on rights must be legally justified  not arbitrary exercise of governmental power o Why? . Advanced knowledge of requirements . Protected against arbitrary action . Accountability . Recall: Baken  liberalism obsessed with setting boundary of government power . Charter is document of liberal legalism o Specific concerns . Restrictions on rights should be29 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  Comprehensible  Accessible  Sufficiently precise o See Therens, below o Two formal requirements – both have to do with giving citizens notice (see Sunday Times, below) . Accessibility  Doesn’t require formal notice, but must be some formal pronouncement in a publication (westlaw, lexis, etc.); promulgated in ordinary way  As long as rule goes through legal process it will satisfy this requirement  Policy manuals explaining, refining statute  are these acceptably accessible? o Courts likely to NOT find these are legally prescribed by law for justification under s. 1 . Precision  Absolute precision not required  R. v. Nova Scotia, below  need for flexibility; impossibility of achieving absolute certainty; different interpretations may coexist  Must be intelligible standard, but court gives a lot of wiggle room o If law requires some judicial interpretation, it can still be found intelligible  Police given fair amount of discretion  Vagueness o Three spots in Charter . Concerns under s. 7 also  fundamental justice cannot be too broad . Minimal impairment stage  If there is some other, less intrusive way to go about this, might be found too vague . Section 1  Pragmatic aspects of law making  need to keep the laws general, but language is imprecise  Courts recognize this oR. v. Therens (1985) – prescribed by law  breathalyzer requirement, term “forthwith” in Criminal Code can be understood to preclude right to counselSunday Times v. United Kingdom (UK 1979) – accessible + sufficient precision = prescribed by law  π prohibited from printing information on thalidomide because of ongoing litigation; said infringed with freedom of speech  Court: law must be accessible, sufficient precision  prescribed by lawR. v. Nova Scotia Pharmaceutical Society (1992 SCC) – liberal interpretation of prescribed by law  Charged with conspiring to lessen competition under Combines Investigation Act; said the provision violated S.7 on grounds of vagueness  Court: always going to be some vagueness, but how much?  Section 1: Rather disqualify under minimal impairment than prescribed by law . Vagueness concern is same under both parts, and concern can be captured in both parts . Minimal impairment is core of s. 130 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition . Tricky test  is the government acting reasonably . Prescribed by law as less rigid standard  Fair notice; Understanding that law touches upon some conduct  Limiting law enforcement discretion  Modern state has to act through law; judiciary mediates  Be wary of using vagueness to impede state action o Need to weigh important societal interest and individual rights o S. 1 lets you balance infringement with important values of government  Real problem is uncontrolled power of stateOakes Test What does reasonable and demonstratively justified in free and democratic society mean? o Freedoms of Charter balanced by realization that sometimes you need to limit these freedoms for greater social purpose. . Rights and freedoms cannot always be absolute. o In section 1.  presupposing rights infringement o US Bill of Rights doesn’t have a limitation clause . limitations read into scope of right o With limitation clause, Court is much more overt in limiting right; don’t need to couch it in terms of defining rightR. v. Oakes (1986 SCC) – outlined test for s. 1 limitation or rights  Sets out six things 1. There are two stages for Charter analysis (rights and s. 1 analysis) . Tricky sections  with respect to section 7 because it has an internal qualification  breach of principles of fundamental justice  S. 8  “unreasonable” search and seizure (how can a limit be reasonable then)  S. 15, 12  . Approach to interpretation a broad and general one . Serious thing to infringe a right  government shouldn’t infringe them lightly . Pro-rights stance taken 2. Onus is on government to uphold limit justified by Section 1. . They have the information, reason 3. S. 1 requires EVIDENCE to show you meet test in s.1 . Nape case  government got by with little evidence 4. Standard of proof: Civil  preponderance of probability 5. Stages of test – purpose and proportionality 6. Two contextual consideration in s.1 . Section 1. should be interpreted STRICTLY  objective criteria . Interpretation consistent with free and democratic society THE TEST1. pressing and substantial purpose (directed towards the realization of collective goals of fundamental importance) a. Looking at act of government that has infringed on right b. Consistent with values of free and democratic society? c. Big M case  failed this stage because purpose was to infringe freedom of religion (compelling religious practice wasn’t pressing and substantial) d. Usually easy for government to satisfy, but purpose can be staged in different ways31 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition i. More generally framed  easier to justify purpose, but harder to win proportionality test. e. Looks at original objective government had in mind when legislation was passed i. Doesn’t allow shifting purpose to map onto changing social circumstances2. proportionality test (three parts) a. rational connection…are the means rationally connected to the purpose? i. Is the legislation tailored to the purpose? ii. RJR case  government tries to regulate tobacco advertisement in order to stop smoking 1. Going after advertising (not human behaviour) 2. Is this regulation rational? 3. Court held these kinds of legislative schemes are hard to prove whether there’s a causal relation or not. a. Need to show simply that it makes COMMON SENSE b. minimum impairment i. “miminum”  doesn’t need to be lowest intrusion possible 1. Does the government impair the right no more than necessary 2. Court is looking whether there’s a different way to do what they want in a less intrusive way c. effects test…balancing the harm or deleterious effects (rights infringement) against the objective, and against the salutary effects i. The last stage has been amplified by Dagenais v. Canadian Broadcasting (p.761)Dagenais v. Canadian Broadcasting (1994 SCC) – refines last stage of Oakes  If very pressing purpose, but ineffective legislation negative effects would outweigh the “benefits”  “deleterious effects” test  requires proportionality between effects of measures that are responsible for limiting right (“deleterious effects”), and the realization of objective that has been identified as of “sufficient importance” (“salutary effects”)Edmonton Journal v. Alberta (AG) (1989 SCC) – Wilson’s contextual approach to interpretation  Wilson talks about using contextual approach to interpretation  Contextual v. Abstract approach o Different results with each approach o Important to not balance one abstract value with a contextual one . Abstract values carry more weight  RJR Macdonald – tobacco advertising o Abstract  freedom of speech o Contextual  commercial speech by producers of dangerous product . Contextual comparison is better . Criticizes Cory’s judgment as incorrectIrwin Toy – commercial speech; deference to legislature  Legislation aimed at protecting children from advertising  Majority finds justified limitation on freedom of expression, looking at advertising in context  Dissent: “noble values” of freedom of expression32 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  Justifiable limit by section 1.  Three considerations led court to this decision o Legislation involved mediating between groups (polycentric problem  many different actors)  democratic solution o When the legislation protects vulnerable groups, there is a social justice concern . Dickson: “courts must be cautious to ensure that it does not simply become and instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.” o When individuals are facing the power of the state, those Charter cases should be given the most concern by the courts (classical liberalism  protection of individual freedoms)  Sets age when children are protected at 13 no scientific evidence to support this though o Built-in inexactitude  Court says government needs a REASONABLE BASIS for designing the law as it did (deferential approach)Thompson Newspapers Co. v. Canada (1998 SCC) – contextual analysis  Federal ban on publishing poll results in last few days of election is unjustified restriction  Bastarche: Importance of context (from Irwin Toy) . Important to kinds / degree of proof by government . Considered at BEGINNING of s. 1 and shapes analysis . Distinctions used in past don’t really pan out  “Singular antagonist”  says government ALWAYS has greater power and also always mediates with groups o Calls for contextual approach that looks at circumstances . Don’t confuse with Wilson’s contextual analysis that looks at how issues shape analysis  here he’s talking about what’s happening, what are the circumstances of the government action o Four considerations . Vulnerability of groups that are being protected . Subjective fears of Group being protected . Is it possible to measure scientifically the harm in question and the effectiveness? . Nature of the activity that’s infringed  what is the value?  In Irwin Toy, action was commercial expression  Seen as being less valuable than individual’s speechRJR Macdonald (1995 SCC) – McLachlin comments on use of contextual analysis  McLachlin stands out from rest of court o Contextual approach to s. 1 application doesn’t mean the burden of the government to prove a valid infringement is lessened. o Don’t carry the law to be a unique socio-economic phenomenon where the legislature has the best answers; can’t just accept Parliament’s view o Accepts that in some circumstances deference is necessary, but shouldn’t be stretched too far so as to relieve government’s burden under s. 1R. v. Lucas (1998 SCC) – Another statement of this concern  McLachlin: again, don’t use contextual analysis to pre-empt s. 1  Oakes test remains flexible o Rights are diverse, different interests o S. 1 will play out differently under each Charter right33 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Section 33 – “notwithstanding clause” Expressly declare;  Can only override ss. 2, 7 and 15  Critical to dialogue theory  Lots of debate when put in o Counter to judicial review (pro) o Taking away entrenched powers of Charter (con)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 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…(more sections)Ford v. Quebec (1988 SCC) - notwithstanding  Quebec passes legislation that opts out of Charter in all cases (omnibus).  Court says can use 33 in omnibus, don’t need to write out overrides  Can’t use it retroactively (presumption in law is retro isn’t allowable) Those who like s.33 don’t think much of Judicial Review  Those who like Judicial Review, don’t value s.33 all that muchChapter 18 – Application of Charter 32. (1)This Charter applies a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. Horizontal application o Regulates behaviour between individuals o We don’t have this in Canada, but it’s elsewhere o Much broader scope of enforcing values in society o Recognizes that there are all sorts of actors o PROS: guaranteed rights regardless of who’s infringing them o CONS: whose rights are more important, yours or mine? . Pre-occupation with liberal theory of protection of civil rights and autonomy . Would become a collective oppression of individuals in limiting their rights Vertical application o Regulates between government and citizens o Where to draw line between public and private? . Charter does it at the government level.34 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition RWDSU v. Dolphin Delivery (1986 SCC) – private actors not subject to Charter  unlawful secondary picketing; courier company’s employees move to other site to protest the first company; company gets injunction; is this violation of freedom of expression  Federal jurisdiction  labour relations of federally regulated companies under federal jurisdiction  Has to rely on common law provisions to get injunction; company says picketing is protected under s.2  Court: freedom of association, etc. But, must first decide if Charter applies  Does it catch judges, common law?  McIntyre says it excludes Judicial branch, includes Executive and Legislative o Applies regardless what they are doing (public or private)Applicability to universities, hospitals, and collegesMcKinney v. The University of Guelph [1990] 3 S.C.R. 229 – Charter doesn’t apply to universities  Challenge to mandatory retirement policies of four Ontario universities; argued policies violate Charter s.15; first, though, does the Charter apply to Universities?  LaForest: Dolphin – narrow, conservative decision  dangers of extending charter too far into private  burdens of court, intrusion into society  Outcome - RULES 1. Is there direct government control? 2. Is there a quintessential government function? (public function is not enough)  Arguments 1. Universities are statutory bodies  legislative action to bring you into being . LaForest says – many things are created by government, including corporations 2. Universities carry out a public function (p.789)  training for market, public purpose . LaForest: many institutions perform important public functions, but are not part of government – public purpose test is inadequate . Quintessential governmental function test  Municipalities  Power to create coercive laws that are generally binding with punishment 3. Government nexus test – universities have a connection to the government; should be considered connected  Established by the state  enabling statute; historical development of universities as part of public system of education; publicly funded; heavy regulation, rules; subject to judicial review . La Forest: doesn’t mean they are controlled by government  All of these factors irrelevant without DIRECT CONTROL of government.  Each university has its own governing body (senate, Board of Governors)  Government has no legal power to control universities  History of academic independence of universities  government control would violate these norms . University becomes rights holders, but without rights responsibilities (from Petter point of view) 4. Wilson’s dissent . Three tests for coverage under Charter  Control test – is there general control by government over entity  Is there a traditional government function performed  Statutory authority and public interest – is entity acting in achievement of greater public purpose? 5. LaForest: more faith in democratic power to solve problems, not judiciary 6. Wilson – judicial activist, commitment to Charter, state reaches intimately into society35 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition . More concerned with leaving PRIVATE power unreviewedStoffman v. Vancouver General Hospital (1990 SCC) - Charter doesn’t apply to hospitals  Mandatory retirement challenge by doctors; hospitals are intimately connected to public policy  La Forest – still not direct control by government  Other factors 1. Doesn’t matter that many members of board appointed by government . Government not controlling appointees of Board 2. Doesn’t matter that regulations have to be approved by Minister . Just a rubber-stamping process 3. Doesn’t matter that this is part of public program set up by Province  No direct and ROUTINE control  board exercised power  Public function of hospitals not enough as far as s.32Douglas Faculty Association v. Douglas College (1990 SCC) - college is governmental  Challenge to mandatory retirement; college managed by board appointed by provincial government; Minister allowed to establish and issue directions, approved by-laws  LaForest: College is governmental actor . Run by government  Day to day routine involvement  No history of autonomy  Board serves at whim of government . Details of board composition matter Lavigne v. Ontario Public Service Employees Union (1991 SCC) – college controlled by government Challenge to union’s compulsory collection of dues; Charter challenge by faculty who didn’t support union  Charter doesn’t apply to union, but does to activities of Council of Regents who were under full control of Minister  Agreement by Council to union’s collection of dues was governmental action  Court finds  once a governmental actor, always a government actorGodbout v. Longueuil (1997 SCC) – Charter applies to municipalities Charter is applicable to Municipalities  democratically elected  general taxing power indistinguishable from legislature  power to create laws  derive existence and lawmaking authority from provinces, and undertakes functions that would have to be done by provinces anywayApplication to non-governmental actors Act performed by entity that is governmental in nature will always be governmental La Forest: important to not allow government to escape responsibilities by altering structure (passing on power)36 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Eldridge v. British Columbia (AG) (1997 SCC) – Charter can be applicable to some non-governmental entities when enacting a governmental program Failure of BC to provide sign language translator; equality rights challenge; Hospital Insurance Act; Medical Healthcare Services Act possible targets; Does breach of s. 15 lie in legislation, Medical Commission, or in hospitals enacting the legislation?; Does Charter apply to decision makers  Courts: corporations are not entrusted by statute to enact legislation; are autonomous from government  no Charter applicability  But, legislators create other entities where it’s not so clear 1. Are they exercising delegated power (municipalities)? 2. Are they fulfilling government policy?  if so, they are part of government  So, Charter can apply to non-governmental entity when they are fulfilling governmental function  Otherwise, government could evade Charter responsibilities  LaForest: Difficult to figure out what’s going on 1. Charter applies to governmental entities insofar as they fulfill governmental function 2. NOT Public function test rejected in McKinney  Looking at action: program that hospital undertakes (activity)  Stoffman said hospitals weren’t governmental entities, but you MUST look at activity itself  Health care benefit delivered by hospital, but government defined CONTENT of program; hospital acting as agent of government  Subject to Charter as pertains to that specific governmental program 1. Qualification of Dolphin Delivery  La Forest modifies some language of Stoffman 1. purely private entities not caught by Charter, but this entity has to have some Charter responsibility 2. La Forest: conservative, limiting scope of Charter limits power of judiciary  targeted at more traditional limits of government (contrast to Wilson). If every entity set up by statute is caught by Charter, that will include almost everything.What about governmental act alone (as opposed to actor)?  Two classes covered: 1. entities implementing governmental programs 2. use of statutory power of compulsionEntities that enact statutory powers of compulsionSlaight Communications Inc. v. Davidson (1989 SCC) – government can’t grant authority to other entities to break Charter  order of arbitrator  exercising powers from legislation  Court: all of arbitrator’s powers come from statute  government can’t confer power to infringe Charter (constitutionally constrained to keep to Charter)  So, arbitrator must also be constrained by Charter  Again, Court says that what you do is importantBlencoe v. British Columbia (Human Rights Commission) (2000 SCC) -  Lengthy time delay in bringing trial for sexual harassment; violated s.7; applicable?  Court HRC not government apparatus, but it’s acts are subject to Charter  Charged with administering specific governmental powers (Eldridge); and has powers of statutory compulsion (Slaight) 37 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition Government Inaction – positive and negative obligations in context of certain rights (s.15, s.7)  debate is about positive and negative obligations  didn’t find positive obligations  Vriend looks at threshold  does Charter apply to government sitting on its hands?Vriend v. Alberta (1998 SCC)  omission of sexual orientation from Alberta’s Individuals  Cory: at threshold, application issue shouldn’t have undue influence so that it removes significant issues from Charter analysis  rule of law issue  Appellate court - McClung (says we shouldn’t question when legislature doesn’t speak to an issue) 1. Absent Hum. Rights statute, only have common law protections 2. So, Charter wouldn’t apply (Dolphin Delivery  Charter doesn’t apply to judiciary and purely private) 3. If legislature comes in and enacts statute, it changes common law to the extent of statute  Cory: 1. challenge is about legislation, not about common law 2. fact that act is under-inclusive doesn’t change the fact that it is the act is being scrutinized 3. language of s. 32 doesn’t preclude application to government inaction – broadly worded to include positive obligations 4. if government omission wasn’t subject to Charter, you could change wording just to leave a particular group out  form reigning over substance  Court leaves open whether full omission could be caught by Charter – don’t have an answer yet  Court; applying Charter to legislative action; incomplete statute doesn’t mean we’re applying to common law rules.  Government of Alberta was failing to distinguish between private activity (not subject to Charter) and laws that regulate private activity (subject to Charter)Dunmore v. Ontario (AG) (2001 SCC)  state has acted in its exclusion of group from labour negotiations.  illustration of how state action (what is considered governmental) has evolved since Dolphin Delivery  Bastarache is still cautious: hasn’t decided issue of applicability where government hasn’t yet regulated From Dolphin Delivery – two streams 1. Applicability to government 2. Application to courts and common law (DD said ‘no’  becoming refined)Application of Charter to Courts and Common Law Dolphin says doesn’t apply to Courts, but this doesn’t make sense and has been ignored 1. e.g. speedy trial, principles of fundamental justice  Dolphin also said it doesn’t apply to common law when relied upon by civil litigants 1. Generally applied, but weakened38 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition BCGEU v. British Columbia (1988 SCC) – common law application  Union picketing of public courthouses, Chief Justice issued an injunction; union challenged as infringing on freedom of expression; was common law  Court said motivation for injunction was public, not private, so Charter applies to judges orderR. v. Swain (1991 SCC) - common law used in criminal law is applicable  common law rule allowing Crown to raise insanity defence against wishes of accused found to violate the CharterDagenais v. Canadian Broadcasting (1994 SCC) – common law modified (see facts above)  if public purpose, then common law will be applicableHill v. Church of Scientology of Toronto (1995 SCC)  π was employee of Ontario government, sued for liable under common law principle of defamation; ∆ said Charter not applicable  Cory: common law needs to be interpreted in context of Charter principles  NOT the same thing as applying common law to Charter  Onus in on party alleging inconsistency to show  No change needed  common law of defamation reflected an appropriate balance between competing interestsRWDSU v. Pepsi Cola (2002 SCC) – secondary picketing; common law application  Charter is guiding instrument in interpreting common law principles  Require evidence of tortious or criminal activity  can’t just assume it’s thereBell ExpressVu v. R (2002 SCC) – consultation of Charter in statutory interpretation Claimant didn’t give notice that it was raising a constitutional issue in time  Said should still apply Charter values to judicial interpretation of statute  Should Charter be influential in this interpretation  Court 1. reasserts that it’s long accepted it should interpret COMMON LAW within Charter 2. statutory enactments are DIFFERENT  different role of courts . embody legislative will  need to be read in terms of intent of leg. . to consult Charter where there isn’t ambiguity (as in Common law), would be to misuse the Charter . dialogue between courts and legislatures = judicial review  would upset proper dialogue between courts and legislatureChapter 20: Freedom of ExpressionR. v. Keegstra (1990 SCC) – introduction to freedom of expression Three purposes underlying freedom of expression in 2(b) (Why is it in the Charter)39 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition 1. free expression is precondition to search for truth . From “marketplace of ideas”  challenging of received wisdom leads to refined and better understood truth . Milton, Oliver Wendell Holmes . But, some ideas “swamp” all other ideas because of resources . Liberal understanding of world 2. connection to political process of democracy . necessary to freeflow of ideas essential for democratic institutions . lynchpin freedom  freedom upon which all other freedoms depend . some argue  that gives it an enhanced status 3. an end in itself in development of people and ideas . not just a means to an end, but it a value in itself . value to sort of society we wish to preserveRichard Moon, The Constitutional Protection of Freedom of Expression  intrinsic/instrumental dichotomy is false  speech has a social character  constitutive of communityOwen Fiss – Liberalism Divided  speech regulation is about furthering equality of others (targeted by hate speech for example)  trade off of DIFFERENT individuals’ libertyRWDSU v. Dolphin Delivery Ltd. (1986 SCC)  addresses freedom of expression in context of picketing  limitation on secondary picketing against third party is reasonable  significant loss for labour union (until Pepsi Cola case)Commercial AdvertisingIrwin Toy Ltd. v. Quebec (Attorney General), [1989 SCC] – template for 2(b) analysis; commercial speech  The province of Quebec passed legislation that prohibited "commercial advertising directed at persons under thirteen years of age". The law was challenged on the basis that it violated the freedom of expression under section 2(b) of the Charter.  example of analytical structure o What is scope of right, and how has it been infringed? Scope is any expression that conveys meaning (arts, words, physical gestures) o Protects content that is about meaning  different from form . Doesn’t matter what the content is . The court held that in order to determine if a breach of section 2(b) had occurred one first had to determine whether the conduct constituted non violent activity which attempted to convey meaning. o Protects all forms that aren’t violent  some forms of expression aren’t protected . violent expression isn’t protected . what to do with expression that is violent in meaning? . compare to Dolphin (p.902) . threats that are violent are content neutral and will be protected o Expression is defined broadly40 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  The next step was to consider whether the effect or purpose of the legislation was to restrict freedom of expression  has something been impinged? o Has there been a purposeful infringement? o If not, has it had the effect of interfering with the protected expression o Two tests . Purpose – (basically a pith and substance)  Does it have the purpose to interfere with expression?  When gov’t action singles out a specific content (hate speech, obscenity, election result posting)  purpose  Or, in EFFECT, it plays out that it does limit (e.g. targeting a specific activity; e.g. can’t hand out handbills (concern is about litter, but effect is limiting expression)  Sometimes form is so closely linked to expression that it is impossible to distinguish o e.g. limit on handbills may be MORE than effects-based restriction, but is closely linked to particular contentalternative  If purposeful limitation, then there is an infringement (and go to s. 1 analysis)  If effects-based determination  one additional step o must show that interference impinges on one of three purposes of expression (truth, democracy, self-fulfillment) o in practice, these values are so large and fluid that it doesn’t amount to anything. . Section 1 Analysis  Different than 2(b) analysis  s.1 analysis makes assessment as to value of expression restricted (core or marginal) o How valuable is speech? o Is this speech designed to protect a valuable group? o Is the government restriction in an area that has difficult policy choices and balancing of competing interests o Thompson Newspapers (p.918) takes up some of these factors and adds to them  In Irwin Toy o Speech less than near core o Protection of vulnerable group o Difficult area of complex social regulation o So  more deferential stance Analysis of Irwin Toy o Is there activity within scope of protected activity? YES o Court says there is a purposeful violation  act is quite clear; limiting advertising to children (regulation of form)  purpose is to limit a particular meaning o S. 1 analysis . Purpose  American report is critical to government’s case o Was it admissible? Came out after legislation. o Wasn’t available when government articulated purpose o Shifting purpose . Court makes distinction between purpose and evidence of purpose  can use new evidence to support old purpose; purpose hasn’t changed. o Report talks about kids 2-6, and legislation aimed at <13 year old. 41 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o Not an issue in the first part of s. 1  government not limited to just the vulnerable group; BUT would come into play in minimal impairment test. . Minimal impairment  Government of Quebec needed reasonable basis for concluding that complete ban would have effect of purpose (reduced, deferential standard  about protecting vulnerable groups)  Not a lot of determinative evidence  Supported by strong rights protection Justices (strangely) . Deleterious effects  No evidence of this being so severe as to outweigh pressing and substantial concern o Dissent (McIntyre J) . Free expression if framed in very broad terms . No case made that children are at risk; fails on proportionality . Small abandonment of vital principle of free and democratic societyOpinion of the Court (Dickson, Lamer, Wilson) Expression - Justices considered the rationale of freedom of expression and enumerated three grounds: o seeking and attaining the truth is an inherently good activity; o participation in social and political decision-making is to be fostered and encouraged; o and the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.  The Justices then considered the scope of expression. They defined it broadly as any activity that "attempts to convey meaning".[2] However, it excluded nonsensical activities that are "purely physical and [do] not convey or attempt to convey meaning"[3] as well as activities that are of a violent form.[4]  The majority re-affirmed the decision of Ford v. Quebec(1988) by finding that freedom of expression included advertising. Accordingly, they found that the Quebec law violated section 2(b).Justified limitation  The Justices then considered whether the law was justified under section 1. They dismissed the argument that the law was not prescribed by law. A law only needed to have an "intelligible standard" which the Quebec law satisfied.  On the inquiry into minimal impairment the Court held that when the government attempts to justify the necessity of a complete ban, courts will not be restrictive to social sciences, however, the government must establish a “sound evidentiary basis” for their conclusions.  The Court was unsympathetic to the harm to Irwin. The effects of the ban, said the Court, were not so severe as to override the objective of the ban. The advertisers would always be able to direct ads to adults or use other means to sell children’s products.Rocket v. Royal College of Dental Surgeons (1990 SCC) – commercial speech can have a value > profit  restriction on dental advertising  commercial speech is protected; meets 2(b) and is purposeful infringement (ag. content)  S. 1 analysis NOT content-neutral  Balancing process  value of dentistry speech assessed  Court concludes restriction doesn’t offend three values, but there is a public interest in expression of dentists of this speech  patients have an interest in this speech o Value to audience more important than in Irwin Toy (dental services vs. toys)42 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition o Consumer information vs. value of legislation (which is to protect consumer from being manipulated) o Protection of vulnerable group, but this group will also benefit  Problem at minimal impairment stage  government grabs more than it needs to  Legislation fails  prohibits more advertising than it needs to in order to protect consumersReference re ss 193 and 195.1 (1)(c) (1990 SCC)  prostitution advertising; difference is social attitudes towards activity  Court finds little value in prostitution; different than dentistry  Gender split on court  does legislation have over-breadth?  Even disapproved of speech needs protection says Young; RJR - MacDonald Inc. v. Canada (Attorney General), [1994 SCC]  Court upheld the federal Tobacco Products Control Act, which banned tobacco advertising and required warning labels on cigarette packages, but struck out the provisions which prevented advertising and unattributed health warnings.  RJR MacDonald Inc. and Imperial Tobacco challenged the Act as being ultra vires the federal government's criminal law power and peace, order and good government power, and as being in violation of the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms.  The Court upheld the Act as a valid under the criminal law power but found that sections 4, 8, and 9 of the Act violated freedom of expression and could not be saved under section 1 of the Charter. There were three separate opinions given.  The majority held that the impugned sections violated the freedom of expression under section 2(b) of the Charter. The right to freedom of expression includes the right to say nothing. The mandatory use of unattributed labels were a form of forced expression and so invoked section 2(b).  The majority held that the violation was not upheld under section 1 of the Charter. Analysis (three judgments) o La Forest (dissent) – flexible approach to s.1 . Oakes sets out guidelines . Guidelines shouldn’t be substituted for s.1 itself  Requires balance of community needs  need to take into account context, values and principles that state is using  Oakes should be applied flexibly  avoid overly-formal application of s.1 . Social science is hard to find  to require that kind of proof would be unreasonable  Legislature can best assess evidence, mediate, protect vulnerable groups . High degree of deference should be observed in this kind of case . Proportionality  Reasonable basis for rational connection to exist o tobacco companies wouldn’t spend so much if they didn’t believe it increased consumption (company argued it was to maintain loyalty) o brand loyalty alone wouldn’t maintain profit levels o ads also appear to dissuade people from quitting o common sense to see connection . Minimal impairment  Advertising categorized into three groups (lifestyle, brand ID, informational)  Appellants argue that this information adds value to consumer43 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  La Forest refutes this and insists advertising has low value  Government has sufficiently made narrow its restriction  Reasonable prohibition under minimal impairment . On the un-attributed message  Difficult to see how message could be attributed to tobacco companies  Similar to other warnings  Lower standard of review  product is dangerous o McLachlin (MAJORITY DECISION) – wants court to not attenuate function of s.1 . Complex socio-economic issue . Under certain circumstances, court should be deferential to legislature . But, don’t want to extend deference too far  Don’t want to relieve government of carrying burden under s.1 . Both regulation of advertisement and mandatory message are not saved by s.1 . Freedom of Expression = “right to say nothing” . Oakes argument  Objective: important to not overstate the objective o Note: it’s important how objective is framed . broader  easier to meet pressing and substantial, but harder to meet minimal impairment (because lots of ways to bring it about) . narrower  harder to meet pressing and substantial, but easier to meet minimal impairment o Rational connection – okay o Minimal impairment – FAILS; . more difficult to justify complete ban than partial ban . brand advertising may serve brand loyalty . underlying activity is LEGAL . government had a variety of less-intrusive means o Iacobucci (concurs with Majority, but concern that AG withheld some information) . AG had done study about effects of partial rather than total ban, but didn’t share . Government should behave in these inquiries in non-adversarial way . Agrees with LaForest that the speech isn’t very valuable, but government still has obligation to carefully tailor law to impair as minimally as possibleThink about Moon expert: social relationship between speaker…Hate Speech  Tension / dilemma is between freedom of speech and equality rights  Speech is recognized as low value  Criminal restrictions  state acting in strictest form  Liberal interpretation: despised speech of one group countered by strong power of stateK Mahoney, “Hate Speech: Affirmation or Contradiction of Freedom of Expression”  denigrates, dehumanizes groups  harmful to groupsA.A. Borovoy, “How not to fight Racial Hatred”  Shouldn’t restrict free speech  Danger to society to limit44 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  Best way to address hate speech is to counter it with speechR. v. Keegstra (1990 SCC) – hate speech HS teacher taught anti-semitism, and required students to participate and write papers; was s. 319(2) of Criminal Code a justified restriction on freedom of expression?  Court upheld the Criminal Code provision prohibiting the unlawful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b) of the Charter.  Dickson (majority) o Infringement of Expression . AG trying to carve out narrow 2(b)  says hate speech not included in protections . Only actual violence is excluded (see Irwin Toy  type of meaning conveyed is irrelevant) . s.319 singles out particular meaning  purposeful (no need to look for effects) . rejects international obligations argument, and ss 15, 27 Charter considerations o S. 1 Analysis (guided by values essential to free and democratic society) . Values at stake are to be shaped contextually (Wilson in Edmonton Journal) . better able to find a fair and just compromise between competing values  flexible approach to Oakes test . Pressing and substantial objective?  objective: prevent pain suffered by target group members and reduce racial, ethnic, and religious tension in Canada  Ct recognizes two kinds of injury that result from such promotion of hatred: o harm done to members of the target group (emotional damage...humiliation and degradation...sense of human dignity and belonging to the community affected... affect self-worth and acceptance) o influence upon society at large (possibility prejudiced messages will gain some credence with result of discrimination and violence against minority groups in Canada (but, sometimes the most powerful speech is untruthful  critique of “marketplace of ideas” ) o Other support for the objective; . ss. 15(1) and 27...commitment to values of equality and multiculturalism in the Charter . Work of numerous study groups and our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred . International commitment to eradicate hate propaganda . Proportionality  Value of speech relevant here, how it relates to core justifications for protection of free expression...same approach as in previous commercial speech cases just looked at …  Ct then compares the speech of Keegstra to the core values of s. 2(b)  truth and the common good are obtained through free speech  but expression can be used to the detriment of the search for truth and rationality will not always overcome all falsehood in the unregulated marketplace of ideas...little chance that statements prohibited by s. 319(2) are true or will lead to a better world...they may do the opposite  freedom of expression ensures ability to gain self-fulfillment  but s. 319(2) speech in opposition to the idea that members of identifiable groups should enjoy this, advocates views that undermine this process of 45 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition individual self-development...undermines ability to articulate and nurture and identity from membership cultural or religious group  f. e. linchpin of political process of democracy: best politics and participation  but hate propaganda muzzles participation of some and undermines commitment to democracy when it denies respect and dignity to individuals because of racial or religious characteristics. So, even though political speech is at heart of protected speech, this brand is not.  concludes that it is possible that, by rejecting hate propaganda, that the state can best encourage values central to freedom of expression. Argues that must not accept that suppression of expression is always a detraction from values central to free expression.  So...hate propaganda should not be accorded the greatest weight in the s. 1 analysis...category of expression that strays some distance from the spirit of s. 2(b) and hence restriction on expression of this kind might be easier to justify than other infringements of s. 2(b) . Rational Connection . Suppression of hate propaganda reduces the harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups in Canadian society . Note that Ct rejects a number of arguments about how the provision promotes the cause underlying the hate propaganda by garnering attention for that speech, cite to anti-Nazi laws that were unsuccessful o Minimal impairment . criminal nature of the legislation  state acting in its most authoritative . Ct should be vigilant to ensure that legislation does not overly circumscribe free speech  needs to be tailored precisely to limit impact Two problems are raised here: 1. overbreadth (capable of catching expression not related to parl. objective) 2. vagueness – (is it unclear what can be caught? chilling effect: people limit their expression out of fear of getting caught)  Not a problem, as the following features insure sufficient precision:1. exemption of private conversation from targeted speech 2. necessity that promotion of hatred be willful 3. not important that doesn’t require proof of actual hatred as need to allow for psychological trauma and, anyway, is sufficient that the risk of hate is real and that the harm that result from hate is serious 4. inclusion of term “promotes” 5. definition of “hatred”  History of illegitimate use to which section has been put by state officials is dismissed as having minimal bearing on the issues of proportionality.  Possible alternative methods of meeting the same objective? although criminal sanction is not the only means of dealing with the problem and may in fact not be the most effective or least invasive, s. 1 does not demand that the gov’t rely on only one mode of intervention. The state should justifiably be able to use the full range of remedies it has available to it (DEFERENCE).  Concludes that the great importance of Parl’s objective outweighs the discounted value of expression at issue such that s. 319(2) is a justifiable limit. (summary of balancing)46 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd editionMcLachlin, J. dissent (she’s a staunch defender of freedom of expression): contest between free expression and values of social harmony, individual liberty…offensive content of speech at stake is irrelevant to striking this balance…  Strong liberal tradition about protecting freedom of expression  fundamental nature of freedom of expression as a means of protecting other rights, democracy;  chilling effect...overly wide deterrence.  abstract rendering of values involved (think back to Wilson’s contextual analysis).  Rational connection: a. tenuous  chilling effect b. prosecution may foster racism (martyr)  Minimal impairment a. overbreadth  “hateful” and “wilful promotion” are too broad, subjective b. criminalization is excessive response  Effects: mixes abstract rendering of values underlying freedom of expression with how criminalization effects individualsTaylor v. Canadian Human Rights Commission (1990 SCC)  Complaint brought under s. 13(1) of CHRA  McLaughlin in dissent, but she said previously that this stuff should be done with Human Rights leg.Collin v. Smith – Skokie case Hill v. Church of Scientology of Toronto – anti-defamation rules Ross v. New Brunswick School – hate-spewing teacher removed from classroom and restricted speech as condition of employmentChapter 23 - Equality RightsIdea of EqualityExcerpts in this section set out range of thoughts about equality…couple of points worth emphasizing1. great moral force of equality2. different and often competing notions of equality which require different things… a. Schwarzschild excerpt: equality of opportunity, equality of possessions, equal welfare, individual equality, absolute equality, proportional equality… b. Black and Smith excerpt when they talk about the different ways of measuring equality; removal of conditions of subordination, creation of conditions for self-fulfillment, equal concern and respect…note how this ties into Schwarzschild’s discussion of how the Enlightenment’s notion of equality—what we might call formal equality—with its acceptance of inequality of outcome, is problematic from other perspectives on equality…47 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition 3. centrality of comparison to an equality analysis…allegation that some person or group is treated more or less favourably requires that other person or group is selected to serve as are reference…choice of who is compared with whom often very important to outcome of case… a. Black and Smith article…not always a clear choice as to who the comparison is with…also question of whether comparison is at level of individuals or groups…s. 15 lists group characteristics…characteristics along which historic and systematic patterns of discrimination exist…Minow point in this excerpt is an important one: that oversimplify characteristics of individuals or groups in making selection for comparison…4. equality and difference are relative concepts…person A is no less different from person B than person B is from person A…5. identical or uniform treatment of those who are in different situations is not always equality… consequences may be different for some than others.Equality as a Legal Standard1. classic notion of equality before the law is part of an understanding of the rule of law…that all are subject to the law…and equal before the law…(Tarnopolsky excerpt) 2. how the US has handled its equal protection law a. influenced Canada in both positive and negative ways b. 14th amendment doesn’t contain list of prohibited grounds of discrimination c. silence on affirmative action d. Plessy v. Ferguson (separate but equal); Brown v. Board of Ed. (nope…) 3. relevance of international human rights documentsEquality in the CharterP. Hughes, Recognizing Substantive Equality as a Foundational Constitutional Principle  equality is on par with other fundamental values (democracy, rule of law, etc.)  understanding of equality has evolved…more subtle forms of inequality are now being addressed  difference between formal equality (emphasizing sameness, from liberal theory) and substantive equality (emphasizing difference); recognizes that difference is important characteristic o substantive equality purported dominant understanding  looks to a contextualized assessment of the situation o affirmation of difference…promotion and valuation, not merely toleration or accommodation of difference…substantive equality…disassembling the norm…complex understandings of identity… formal equality is rooted in liberal theory...protects against obtrusive gov't two obstacles to attainment of equality: first, gov't intervention required for social equality...must go beyond negative check on gov't action...impose positive obligations...positive rights second, possible limitation of the Charter to civil, political and legal rights, not also to economic, social and cultural rights (first generation rights: speech, association, etc., but equality requires second generation rights: standard of living, etc.)48 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition  Tension between individual versus collective rights...many of the rights in the Charter appear to be designed to protect the individual from the state of the majority...may also be interpreted to extend protection to collective right...an important post-liberal concept formal equality rooted in liberalism  equality of opportunity or procedural equality  Three central features: o individualistic...society is composed of autonomous individuals in contrast to the more group focus of other approaches...each individual has the right to be treated the same as every other individual o non-interventionist state which acts only when one individual violates the rights of another individual...no positive duty to act o faith in the neutrality of the "rule of law"...equal formal application of the law to all...requires facially-neutral treatment Problems  Creates an illusion of fairness when outcome may be substantially unfair,  continuation of systemic, pre-existing inequality…plays off of social or biological difference...and in so doing contributes to substantive inequality and creates a consciousness that separates law from politics  see Brooks  Recognition that formal equality can be unequal in result formal inequality conservative, traditional patriarchal assumptions about the role of women in society  accepts and justifies social inequality rather than trying to deny its existence...overtly sanctions hierarchical relation...male domination in traditional family  views individuals as integral members of social institutions, structures, and communities  implicitly accepts the dominant world view as universal, helps only those members of an oppressed group that can emulate and adopt the standards, values, and characteristics of those who dominate in society  misplaced notion of the political neutrality of the rule of law substantive equality equality of condition or outcomes  associated with the rise of the regulatory welfare state  Courts often revert to conservative assumptions about the role of women perpetuating the patriarchal bias of legal outcomes  unlike formal equality recognizes that formally equal treatment may allow underlying economic and social disparities to persistProblem :laws inevitably classify and differentiate, yet this differentiation is precisely what is problematic under theories of inequality Solution in first round of equality cases was the formulation of the principle that those similarly treated by treated similarly, likes be treated alike...purports to provide a principled way of determining when different treatment is problematic from and equality perspective49 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition disparate Impact switch from focus on procedures to post-liberal concern with outcomes...  rules neutral on their fact can have disparate impact on difference classes of individuals...  effects-based approach...strikes at the heart of the liberal formalist belief in the fairness of facially- neutral rules and procedures...consequences open to scrutiny  If unequal effect  will be found to have disparate impact (e.g. hiring rule: must bench press 200 pounds)  DON’T need to show intent to discriminate in Canada (different than in US)Section 15  enacted in 1985  recognition that there were problems with laws  set standard for equality; most provinces fixed discrimination in laws  confers right on individuals o Doesn’t apply to corporations  Equality expressed in four ways (but not parsed out by courts) o before the law o under the law o equal benefit o equal protection  enumerated grounds (but read as being open-ended) o analogous grounds (e.g. sexual orientation)  s. 15(2)  affirmative action programs o substantive equality  s. 28  equality to male and female persons o interpretive provision  no new rights o not subject to s. 33 (can’t override) o not delayed  came into effect 1982 o debate about whether subject to s. 1 . generally held to NOT be subject  Charter interpretation of equality is difficult o dilemma rises from fact that all legislation draws a distinction o when does this distinction become problematic?  TWO stages of interpretation by courts o Andrews Test . but, then convoluted afterwards o Law Test15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.(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.50 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition 28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.Andrews v. Law Society of British Columbia (1989 SCC) – first test of section 15  provision that you had to be Canadian citizen to be admitted to the bar  split court in SCC, but unanimously found to be violation of S. 15  McIntrye's judgement (dissent) contains five important and clear statements (analysis endorsed by most judges): o Equality is changing, elusive right, protean o rejection of the similarly situated test . Aristotelian principle of formal equality, things that are alike should be treated alike while things that are unalike should be treated unalike in proportion of their unlikeness…(see reference to this Aristotelian statement in the Black and Smith excerpt…) . says: it is essentially toothless against inequality, not a realistic test..."a bad law will not be saved merely because it operates equally on those to whom it has application" (e.g. Nuremberg laws of Hitler) . test offers no real basis to distinguish different treatment that is unacceptable from different treatment that is acceptable and unavoidable o distinguishes between s. 15 and s. 1 . therefore rejects a theory of equality that focuses on the rationality of the law in question (is this being respected in Law test, later decisions?) . So justification to be left for job of s. 1 – ct. doesn't always keep to this promise. o rejects Bill of Rights equality jurisprudence . Critiques Bliss as a product of the similarly situated test…reviews some of the equality jurisprudence under the Bill of Rights: Lavell, Bliss—too timid a review of gov't action under the Bill of Rights o rejects the requirement of intent . main consideration in striving for full equality must be the impact of the law on the individual or the group concerned...so the ct will look to the effects of the law, not to whether or not the perpetrator intended to discriminate.(Important—esp. re sex discrimination). o Purpose . to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. (evolution of articulation of s. 15 purpose...current formulation in Law centres on "human dignity"). Two questions are raised by this judgment and not adequately answered: o what is the meaning of discrimination? Need to know this as this has been identified as the last stage of the s. 15 inquiry—only breaches of four equality rights which amount to discrimination count—internal qualification in s. 15 o What is the test for inequality under s. 15? general method for analysis under s. 15. . discrimination  discrimination has to relate to "personal characteristics" of individual or group and to the use of such characteristics as a basis for differential burdening or benefiting of the individuals or group  **note important qualification...distinctions based on personal merit will not be caught by this test...i.e. relevant personal characteristics will sometimes 51 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition permit different treatment (critique: merit very much a socially loaded concept...looks dangerously like notions of natural inequality which plague formal equality and formal inequality analyses). INEQUALITY (what is the extent of the guarantee in s. 15?)  THREE TESTS: o Hogg—all distinctions trigger s. 15, any fine tuning happens at s. 1 stage . McIntrye rejects this...where says not every distinction or differentiation in treatment will transgress the equality guarantees... to govern have to treat individuals and groups differently. o McLachlin—unreasonable and unfair distinctions activate s. 15, s. 1 saved for extreme situation...other distinctions don't trigger s. 15—so internal qualification . McIntyre denies any function to s. 1...issues of justification solved by s. 15 o Enumerated and analogous grounds test...discrimination generally expressed by the enumerated or analogous grounds...groups not mentioned in s. 15 will be protected if they are analogous to those that are... . analogous group means, at least in early cases, changes later, that a group has been subject to a history of discrimination and ill-treatment...requires more than mere finding of distinction...distinctions which involve prejudice or disadvantage...unclear description by McIntrye but suggests would mean pejorative distinctions, distinctions, based on stereotypes and prejudice. . McIntrye adopts the third test...middle ground between Hogg and McLachlin....not helpful discussion as seems to re- introduce rationality test o Application . Has there been a distinction? Yes  citizens, non citizens? . Burden imposed? yes  can’t practice law . analogous ground? yes  group is there . McIntyre  deferential stance to s. 1 . Wilson  not so deferential  non-citizens vulnerable  analogous category  find place of analogous group in society o “discrete and insular minorities”  status and coherence as disadvantaged o political disempowerment . LaForest  reads application of charter more narrowly; judicial conservatism  should give the legislature some leewayR. v. Turpin (1989 SCC) – purpose of s.15  protects those who have been disadvantaged . Wilson attempts to describe purpose of s.15 . two people charged with murder in Ontario; argued Criminal Code discriminated against them because it denied them the right to choice of trial by judge alone, as was allowed in Alberta. . Wilson rejects this claim  claimant doesn’t belong to groups52 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition . Had to be a disadvantaged group to claim equality;Hess, Weatherall cases  reject argument that membership in pre-existing group is necessary Trilogy cases  relevant until 1999; o Three part test of Andrews relied upon by court o Pressures on use of Andrews test grew, however . Andrews not very straightforward . Concern by courts – needed three separate arguments  morass, SCC not giving guidance o Three approaches emerged . Concentration on stereotyping (McLachlin) . Concentration on relevancy (LaMer, Gonthier, etc.) . Look at nature of group affected and characteristic of discrimination  More vulnerable group was or more significant discrimination was, more likely to find discrimination  Abhors “analogous grounds” (L’Hereaux-Dube) o Miron  discrimination o Thibaudeau v. Canada, Schafer v. Canada  no discrimination o “under any of the approaches, there would be discrimination”  amalgamation of approachesThe Law Test Law v. Canada (Minister of Employment and Immigration) (1999 SCC) – current template for equality test  Survivor’s pension under Canada Pension Plan gradually reduces pension for able-bodied surviving spouses without dependent children between 35 and 45 years old; π was 30 years old when husband died; request for pension denied; was this age discrimination under s.15? Iacobucci: no violation of s.15.  Criticism of this case o This case makes it tougher to show infringement of s.15 o Confuses s.15 with s.1  brings into balancing questions of s.1 o Way more losses than victories since this caseANALAGOUS GROUNDS – not specifically listed in s.15, but courts treat them the same (e.g. sexual orientation)1. Guidelines for analysis under s.15 a. not a strict test but points of reference  THREE STEP purposive and contextual approach i. Does impugned law draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (Eldridge, Vriend: facially neutral legislation or policy can result in a successful s. 15 claim of discrimination…recognition of adverse effects discrimination.) ii. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? (Corbiere addition about analogous grounds: personal characteristic that is immutable or changeable only at unacceptable cost to personal identity.) iii. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the 53 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?  Second and third step concerned with whether differential treatment constitutes discrimination in the substantive sense intended by s. 15(1)  differentiation <> discrimination2. purpose of s. 15(1) a. to prevent the violation of essential human dignity and freedom and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society. Essentially the purpose underlying s. 15, as the court comes to shorten it, is the prevention of violation of essential human dignity.3. equality guarantee is a comparative concept a. The court will have to establish relevant comparators. They generally will choose the person, group, or groups with whom the complainant wishes to be compared. However, the ct may refine the comparison presented where warranted. Locating the relevant comparison group requires an examination of the subject-matter of the legislation and its effects, as well as a full appreciation of context.4. Contextual factors which determine whether law has the effect of demeaning a claimant’s dignity must be construed and examined from the perspective of the claimant. a. The focus will be that of a reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim. This is what the ct calls a subjective/objective focus. It is not sufficient for the claimant to simply assert that her or his dignity has been adversely affected by a law. It must be supported by an objective assessment of the situation. b. About substantive equality  looks at who we are in context to make “equality”5. ***The list of factors which a claimant may refer to show that her or his dignity has been infringed is an open list. a. But, some important factors. Generally, these factors will be of four sorts:  pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group. Note that this factor is not per se determinative of an infringement.  correspondence or lack thereof between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. It will be more difficult, but not impossible, to establish discrimination if the law takes into account the claimant's actual situation in a respectful manner.  ameliorative purpose or effects of an impugned law upon a more disadvantaged person or group in society...means that it will not likely violate human dignity of more advantaged individuals when the exclusion of these more advantaged individuals corresponds to the greater need or different circumstances experienced by the targeted disadvantaged group.  nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely there is discrimination.Not necessary that the claimant adduce evidence to show a violation of human dignity or freedom. Frequently will be evident on the basis of judicial notice and logical reasoning that distinction is discriminatory. choice of comparative group makes a lot of difference54 Constitutional Law 100, Prof. Margot Young - Part 2, © 2007 Scott Bernstein Canadian Constitutional Law – Constitutional Law Group, 3rd edition 1. Court recognizes that it can be difficult for claimant to prove dignity has been affected  will use common sense. In reasonable circumstances, would person’s dignity be assaulted? a. Gosselin  found that living on $170 a month in welfare payment WASN’T an infringement of dignity; reduced based on age b. What was impact of being a woman on living on that amount? c. Court had to construct what her group was and how to compare? i. Didn’t take age into account Application to case  Distinction between claimants by age  three different sets of treatment  Enumerated ground? YES  age  Discriminatory?  Adults under 45 disadvantaged, previous disadvantage? NO;  Younger spouses do have less difficulty finding employment;  Has ameliorative effect for OLDER spouses (isn’t gender relevant, though); relied on statistical data  Court finds this is one of those rare cases that doesn’t amount to discrimination (but not rare, really)Eldridge v. British Columbia (1997 SCC) – adverse effects can be discriminatory in “neutral law”  Failure of BC to provide sign language translator; equality rights challenge; Hospital Insurance Act; Medical Healthcare Services Act possible targets; Is there a breach of s.15?  Legislation makes no distinction between hearing impaired and not individuals; gov’t of BC said they’re not required to ameliorate situation they didn’t cause  LaForest (unanimous):Court will find discrimination even when law is neutral on its face  still a link; physically disabled are part of enumerated group  Government will rarely single out disabled persons for discriminatory treatment; most common are laws of general application that have a disparate impact on the disabled.  In effect, government ended up denying benefit based on hearing  sign language is at core of health care (communication)  ADVERSE EFFECT  government needs to ensure that disadvantaged groups receive equal benefits from government services.  When state provides a benefit, it must do so in non-discriminatory manner  Court not picking between three approaches of trilogy  all are relevantCorbiere v. Canada (1999 SCC) – elaborates criteria for analogous grounds  (Potchier article – important to keep reference to enumerated and analogous grounds)  s. 77(1) of Indian Act makes voting band elections contingent on living on reserve  off-reserve residence  McLachlin, Bastarache: 1) analogous grounds are just like enumerated grounds and 2) both grounds flag suspect treatment  But, not always case that different treatment isn’t discriminatory  Once analogous ground, always analogous ground  Criteria for analogous ground  immutable or not constructively changeable without great cost (e.g. religion)  L’Hereaux-dube (dissent): analogous grounds criteria: fundamental characteristic, lack of political power, etc.  in some context, analogous ground in one case may not be one in another55

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