LAW 435 CONSTITUTIONAL BILLINGSLEY

Transcription

1 LAW 435 CONSTITUTIONAL BILLINGSLEY 1

2 TOPIC 1: INTRODUCTION TO THE CONSTITUTION Patriation Reference Allows us to amend our own constitution without having to go to UK for approval. Developed a test for establishing whether a convention exists or not 1. What are the precedents? 2. Did the actors in the precedents believe they were bound by a rule? 3. Is there a reason for the rule? Reference re. Secession of Quebec Identified unwritten principles of the Constitution federalism democracy constitutionalism rule of law protection of minorities BC v. Imperial Tobacco Narrows the notion of an unwritten rule of law. Links it to the written Constitution Developed test for following the principles of the rule of law 1. Is the law supreme over officials of the government as well as private individuals? 2. Is it an actual order of positive laws which preserves and embodies the more general principle of normative order? 3. Is the relationship between the state and the individual regulated by the law? CONSTITUTIONAL AMENDMENT 5 Amending formula: 1. General 7/50 (requires 2/3 of the provinces representing at least 50% of the population) 2. Unanimity 3. Some, but not all (need consent of the federal government and any provinces affected by a particular amendment) 4. Federal Government only 5. Provincial government only Some provinces have passed legislation requiring referendums to be held on any constitutional amendment questions An Act Respecting Constitutional Amendments, 1996, c. 1 Passed to provide a regional veto as part of the General Amending Formula. 2

3 Five regions: Ontario Quebec BC Western Provinces (AB, SK, MB) Atlantic Provinces (NB, NS, PEI) Conventions are unwritten rule or procedure that is enforced by the political process, not the courts Amendments to the unwritten portion of the Constitution happen all the time. 1. Conventions 2. Intergovernmental cooperation 3. Statutes 4. Court decisions/judicial interpretation STANDING 1. Reference: Any governmental body can bring a question to any Court regarding constitutionality. 2. Declaration: Anyone can bring a challenge by declaring that a law is unconstitutional. 1. Particularly prejudiced: you have been charged with an offence 2. Public Interest Standing Test: Must prove that you are raising a serious legal question, have genuine interest in the resolution of that question, and that there is no other reasonable or effective manner in which to raise the question Important cases for Public Interest Standing Test: 1. Thorson v. A.G. Canada wanted to challenge the official bilingual act SCC said no one will ever be able to raise this question if Thorson isn't allowed. 2. Nova Scotia Board of Censors v. McNeil Provincial statute set up a board that prosecuted theatre owners who showed what they wanted to show. McNeil was a member of the public who wanted to view a banned movie SCC said he had standing to raise his question. 3. Minister of Justice v. Borowski Borowski was a doctor who fought for allowing women to have elected abortions. SCC granted Borowski standing to do so, even though he was not a woman and could not be criminally charged. 4. Canadian Council of Churches v. Canada Previous cases all brought different pieces of the test, but this case brought them all 3

4 together. Regarding refugee status of immigrants Court set out the three-part test, but found that there was another reasonable or effective manner in which to raise the question. Important case for Particularly Prejudiced Test: 1. R. v. Big M Drug Mart Big M wanted to bring the challenge against the Crown regarding the Lord's Day Act based on freedom of religion, but wasn't particularly prejudiced. SCC said that is was ok, b/c you can bring a challenge on someone else's behalf. Also, Big M was being criminally charged so they were particularly prejudiced. TOPIC 2: DIVISION OF POWERS 2.A. General Principles STEP 1: Characterize the legislation Pith and substance: Must look at both the purpose and effect of the Act. Looking at the overall essence of the legislation. R. v. Morgentaler Necessarily incidental: Features of a law that go outside the pith and substance of the law it belongs to, but are still considered ok. GM v. City National Leasing Double aspect: Legal doctrine that allows for laws to be created by both provincial and federal governments in relation to the same subject matter. Double aspect is the actual issue (as opposed to concurrency which is about power over the issue). In the case where one subject matter cannot be identified as the most dominant feature of the impugned legislation, the courts can in fact invoke the double aspect doctrine. This doctrine recognizes that one aspect of the law falls within the federal jurisdiction and another aspect falls within provincial jurisdiction. The double aspect doctrine is invoked by the courts when it finds that both aspects of the challenged law are equal in importance. Multiple Access v. McCutcheons Colourability: Where the court finds that a law is intended to look like one thing, but it s really another. STEP 2: Define the Scope of the Constitutional Powers Exclusiveness/concurrency: Each government has exclusive power over their listed area of jurisdiction. Concurrency: A power shared by both levels of government. Both levels of government have power to legislate with respect to a particular subject, apart from 94a and 95. Concurrency refers to power over the issue. Exhaustiveness: Idea that Constitution covers everything 4

5 Ancillary Power: Recognizes the same thing as necessarily incidental with respect to powers. Recognition that these powers include ancillary powers by which these ones will function. eg. Parliament's ancillary power would be an an area falling mainly under provincial jurisdiction under subsection 92(13) of the Constitution Act, 1867, but which may be governed by Parliament to the extent required for the furtherance of an objective under Parliament's exclusive authority. Progressive Interpretation: Must take a progressive approach to interpreting terms in the legislation. Cannot take a limited approach. STEP 3: Find the legislation a Home and assess the implications Paramountcy: Federal law takes precedence. Applies when there is both a valid federal and a valid provincial law dealing with the same thing and complying with one necessarily means violating the other. (narrow view) This principle only operates to the favour of the federal government. Rothman v. Benson Hedges Ross v. Registrar of Motor Vehicles Law Society of BC v. Mangat Interjurisdictional Immunity: When a valid provincial law impacts on a federal undertaking. The provincial law stays valid, but in its application, a federal undertaking is excluded. A basic, minimum, and unassailable content must be assigned to matters within exclusive federal jurisdiction. Only operates to the favour of the federal government McKay v. The Queen (1965): federal election signs Canadian Western Bank v. Alberta Reading Down (relates to interjurisdictional immunity): A court can read down a law to make it match the Charter. The doctrine of effectiveness is expressed in the maxim ut res magis valiat quam pereat (a statute is so construed, as to make it effective). Hence, there is a presumption that the legislature does not exceed the limits of its constitutional competence. This presumption preserves the effectiveness of the statute in question. This is a constitutional remedy. Presumption of Constitutionality: when in doubt, assume that the government is acting within its sphere of influence Severance: Severing the impugned provisions of a legislation rather than striking down the entire legislation. Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. In that way, as much of the legislative purpose as possible may be realized. 2.B. The CRIMINAL LAW POWER s. 91(27) of Constitution The Criminal Law Test (from Margarine Reference) 5

6 1. Prohibition 2. Penalty 3. Valid criminal law purpose Applying the Criminal Law Test to Federal Legislation Margarine Reference (1949) Federal legislation found not to be directed at a valid criminal law purpose Established the 3-part Criminal Law Test RJR MacDonald v. Canada Federal legislation prohibiting advertising of tobacco SCC said that the goal of the legislation was a valid criminal purpose, the health of Canadians, so considered valid Criminal law power is plenary, not frozen in time R v. Malmo-Levine Federal legislation on marijuana use. M-L argued that the prohibition of marijuana can't be a valid criminal law b/c its use doesn't cause a problem to the legitimate public. SCC said that from the point of view of the govt, even the user was a member of the public, so valid law. Hydro-Quebec Federal legislation authorizing the minister to make regulations regarding the release of toxic substances Majority found that looking at the Act as a whole, there was a prohibition and penalty. Firearms Reference Applying the Criminal Law Test to Provincial Legislation Re. Nova Scotia Board of Censors v. McNeil Provincial legislation establishing a regulatory system for showing and censoring movies. Majority finds that the law is valid b/c it is in pith and substance about property and civil rights. Westendorp v. The Queen City of Calgary bylaw that dealt with controlling the carrying on of businesses, trades, or occupations on the streets SCC found unanimously that the bylaw was invalid b/c it infringed on criminal law. 6

7 2.C. POGG POWER Interpretive Approaches to POGG As a right unto itself As the federal power When does POGG Apply? GAP Test: applies where there is a gap in the distribution of powers in the Constitution. A gap occurs where the matter is partially assigned to one level of government but no provision is made for the remaining aspects of the matter. Doesn't apply to things that didn't exist before. Emergency Test: Federal government has power to legislate over any matter that is a national emergency. Government is not compelled to say it's an emergency. Government also does not have to prove that it is a real emergency, just that there is a rational basis for the government to think that there was an emergency. To rely on the emergency doctrine, the legislation must be temporary. National Concern Test: Federal government has inherent jurisdiction to legislate on distinct matters of national concern. Must be either matters that although originally provincial, have acquired a level of national concern, or is by its nature of national concern. National dimension, use Provincial Inability Test (linked to purpose AND effect) here Distinctiveness/uniqueness/singleness Newness: conceptually new. Not addressed in Constitution. Russell v. The Queen Re. Local Prohibition Re. Anti-Inflation Act R. v. Crown Zellerbach Friends of the Oldman River Society TRADE AND COMMERCE POWER The Interprovincial / Intraprovincial Test The trade and commerce power can be used by the federal government to regulate interprovincial trade where it is necessarily incidental even where it affects the intra-provincial trade. In pith and substance, the regulation must be inter-provincial. 7

8 The General Regulation of Trade Test Legislation is valid under a general regulation of trade if: Is part of a regulatory scheme. This is a form requirement. Distinguishes it from criminal law. Scheme is monitored by a regulatory agency It is with respect to trade in general, not a particular industry It is a matter that the provinces cannot constitutionally legislate about The scheme would fall apart if one province didn't legislate the same thing as all th e other provinces. Citizens Insurance v. Parsons (1882) established a test to determine whether the legislation is in pith and substance directed at inter-provincial or intra-provincial trade. Established that federal government can legislate over inter-provincial and international trade, and provincial government can legislate over inter-provincial trade Carnation Co (1968) and Manitoba Egg Reference (1971) SCC found in Carnation Co that a provincial regulation over the price of milk in QC that was sold to Carnation in QC but destined for other provinces was intra vires. They said that the legislation in pith and substance was designed to legislate intra-provincial trade and any effect on the retail price in other provinces was incidental. SCC seemed to flip flop in Manitoba Egg Reference by finding similar legislation in Manitoba ultra vires. Said that the legislation in pith and substance was designed to affect inter-provincial trade. Labatt Breweries (1980) Issue was not with inter-provincial trade but with the labelling provision of the federal Food and Drug Act. The principle that comes out of this case is that the federal trade and commerce power cannot be used to regulate one industry at a time. General Motors v. City National Leasing (1989) SCC clarified 5 hallmarks of validity of a legislation under the trade and commerce power: Legislation must be part of a regulatory scheme The scheme must be monitored by a regulatory agency The legislation must be part of a general regulation over trade and commerce, not relating to a particular industry Must not be able to be legislated by the provinces The failure to include one or more provinces in the legislative scheme would jeopardize the successful operation of the scheme in other parts of the country. The main difference between this test and the inter-provincial test is that this test could address 8

9 intra-provincial trade b/c it's happening everywhere. THE JUDICIARY JUDICIAL POWERS IN THE CONSTITUTION Section 96 The Section 96 Issue The Section 96 Test Privative Clauses Ontario Residential Tenancies Act - Established the Residential Tenancies Test 1. Is the power of the tribunal the same as the original power that a s.96 court exclusively had at the time of confederation? If no, then the tribunal is constitutionally valid. If yes, then must go on to step Is the power being exercised by the tribunal judicial in nature? If no, no problem. If yes, then go on to step Is the sole or central function of the tribunal operating like a s.96 court? There are many problems with the Residential Tenancies Test. very subjective. McEvoy v. AG New Brunswick and AG Canada established that according to the Constitution, the federal government does not have authority to give away its s.96 powers. Crevier v. Quebec SCC said that privative clause made the tribunal ultra vires b/c it eliminated review of decisions on the basis of jurisdiction, in violation of s.96 of the constitution. JUDICIAL INDEPENDENCE Reference re. Remuneration of Provincial Court Judges (1997) Provinces were trying to decrease the salaries of provincial officers Court said that judicial independence is an unwritten norm of the Constitution and is backed by mechanisms set out in ss of the Constitution Clarified the three elements to judicial independence: 1. Tenure 2. Financial security 3. Administrative independence 9

10 TOPIC 3: THE CANADIAN CHARTER OF RIGHTS & FREEDOMS 3.A. Charter Analysis Purpose and History of the Charter To protect individuals from State action Designed to protect minority interests. It's not a majority-rights document. Authorizes judicial review of legislation Was fought against b/c it changed Canada from a system of parliamentary supremacy, to one in which the court is supreme. Elevates the notion of individual rights to constitutional status Standing: Who can take the benefit of Charter Rights? Individuals. Application of the Charter To Legislation & Regulations Common law (if being relied upon by a government actor) Statutes To Government Actors Entities under Government Control Private Parties Implementing Government Policy Courts/Common Law Individuals A Charter Challenge consists of two questions: 1. Does the Charter apply? a) Is this a government action? b) Is there a notwithstanding clause? 2. Is there a Charter right that's actually violated? If yes, then go to next question. 3. Can the violation be justified under s.1? If no, then go on to the fourth question. 4. What's the remedy? 1. Does the Charter apply? a) Is this a government action? s. 32: Charter applies to four bodies: Parliament of Canada Legislatures of Provinces Government of Canada Governments of the Provinces Dolphin Delivery Issue: Does the Charter apply to the common law? RATIO: Charter applies to the common law 10

11 Issue: Is the court a government actor? RATIO: Actions of the Court are not reviewable under the Charter. Courts are obliged to develop the common law in a way that is consistent with Charter values. Controversial ruling b/c of the line it drew Government action continuum: Statute (Charter always applies) -> Executive government action, regulations/orders in court (Charter always applies) -> Entity performing a government function -> Entity implementing a government policy -> Courts (Charter does not apply to the actions of the court, but does apply to the common law if a government actor is relying on it -> Private actors (Charter never applies) McKinney v. U of Guelph Issue: Is a university a government actor? Court said no to all three: It's created by statute It's funded by the government University's fulfill a public purpose RATIO: A government actor is an institution whose day-to-day activities are controlled/directed by the government. Godbout v. Longeuil RATIO: Municipal governments are governmental actors: They have largely governmental functions (as opposed to public functions) Eldridge v. BC Issue: Are hospitals and the Medical Services Commission government actors? According to the McKinney Test, they would not be government actors. RATIO: A private entity can be subject to the Charter if it is implementing a specific government policy or program. (Government can't get around the Charter by delegating) Controversial finding b/c of the characterization of this as a government policy or program (as opposed to a public purpose). What's the difference? Hill v. Scientology Idea that the common law needs to be developed in accordance with Charter values is nothing more than the inherent jurisdiction of the court to modify the common law to reflect prevailing social values. In order to do that the court has to be convinced entirely by the claimant that the common law is inconsistent with Charter values and that the inconsistency is unjustifiable given Charter values. Important to recognize the distinction between challenging a common law rule (government actors involved) and developing the common law according to Charter values (private actors involved) b) Is there a notwithstanding clause? 2. Is there a Charter right that's actually violated? If yes, then go to next question. 11

12 3. Can the violation be justified under s.1? If no, then go on to the fourth question. 4. What's the remedy? 12

13 Section 33 What is the Purpose of Section 33? Removes the court's ability to review that legislation is under the Charter. Uniquely Canadian. How Does Section 33 Operate? Only fundamental freedoms can be overridden (ss. 2, 7-15). Certain rights cannot be overridden. Must be express declaration in a statue specifying which sections of the Charter are being overridden. Cannot be implied. Only need a simple majority vote. Ford v. Quebec In June 1982, Quebec passed omnibus legislation that inserted a notwithstanding clause into all laws and specified that every new law would also have a notwithstanding clause. Omnibus legislation was retroactive to April 17, Ford challenged the validity of the notwithstanding clause. Court upheld notwithstanding clause, except for the retroactivity. S. 33 lays down requirements of form only. Do not need to specify full wording of the right being impaired. Can refer to it by section number. Nothing in s. 33 prohibits omnibus legislation Statutes cannot be applied retroactively How has Section 33 Been Used? It's always been used pre-emptively Federal government has never used s. 33. s. 33 hasn't been heavily used. QC: omnibus legislation. Still exists in some legislation in QC. SK: Back-to-work legislation YK: legislation that was never put into force, dealing with landplanning and native councils AB: Marriage Act, s. 2 keeping the definition of marriage as between a man and a woman. But now invalid b/c provinces cannot define marriage. AB: After Leilani Muir, Institutional Confinement and Sexual Sterilization Compensation Act limited damages. Proposed the bill using a notwithstanding clause. Huge public outcry. Premier Klein took it off the table the next day. Does Section 33 Have a Legitimate Role in the Charter? History: Charter would not have been passed if s. 33 hadn't been included. Most premiers fearful of CCRF being entrenched in the Constitution b/c they were afraid that their power would be curtailed. Concerned that unelected judges would be telling legislatures what they could and could not do. 13

14 Gives a huge amount of power to legislators to override our most important values. Hogg says that it is has a role as an instrument of dialogue. But s. 33 has never been used to react to a court decision. It's always been used pre-emptively. Used when the elected legislature is saying that the court is wrong. Section 1 What is Purpose and Effect of Section 1 on Charter Analysis? Limiting provision Limits all the Charter rights by the parameters for a free and democratic society. No s. 1 equivalent in US Constitution. Benefit of our system is that you don't get the balancing issues under s.1 infiltrating our understanding of the rights. Problem with our system is that it's easy to define her rights so broadly that they become almost meaningless and all of the fine defining is done under s.1 Goal is to strike a balance. Effect of s. 1 is to create a very distinct, two-step process: 1. Has a Charter right been violated? 2. If a Charter right has been violated, is the violation justifiable? Justification exercise is more than simply majority rule Burden of proving a Charter right violation is on the plaintiff Burden of proving justifiability is on the government. Issue: some Charter rights are described as though they have internal limitations already (Right from unreasonable search and seizure). The right is not written in absolute terms. Can s. 1 realistically be applied to these types of situations? Limitations Prescribed by Law Important threshold The purpose of prescribed by law is: to ensure that you know the law the limit should be intelligible and ascertainable (Rule of Law) First, court must see whether the limit imposed on the right has been prescribed by law (Threshold question). Looking for a statute or common law rule that specifically/expressly imposes the limit. Second, the limitation will be prescribed by law if it is implicit. Third, it can be prescribed by law if a statute confers discretion on a body and the body exercises that discretion in a manner that limits your Charter right. R. v. Orbanski Statute at the time when Orbanski ran a stop sign and was stopped did not expressly authorize the police to ask questions or administer roadside tests. Majority said that this was a limit prescribed by law. The state authorizes officers to stop vehicles. It's implicit within that power that they should also 14

15 be able to ask the driver questions about their ability to drive and to conduct roadside sobriety tests. RATIO: A law can have an implicit limitation of a Charter right. The Oakes Test Mechanism for analyzing under s.1 1. Objective: The objective cannot be trivial or not accord with Charter values itself. If the objective is too huge, there will always be a way to achieve that objective. If objective is defined too narrowly, then it will always pass the proportionality part of the test, b/c tautological. So, must always make sure the objective relates to the Charter breach. RJR Goal of legislation must be related to the impugned provision. 2a. Proportionality Balancing the interests of society in having the legislation with the Charter right of the group being affected. 2b. Rational Connection Causal connection between the law and its objective Doesn't need to be scientific proof of causation Law must not be arbitrary, unfair, or irrationally connected to its objective 2c. Minimal impairment Impair the right as reasonably little as possible Since the Oakes Test, courts have struggled with two main considerations in applying the test: Context: Courts have said that you don't apply s.1 in a vacuum. It must be applied in the context of the particular Charter breach. Deference: Government is making a value decision in saying that it is important that this goal be achieved, even if it impairs a Charter right. By reviewing this decision, Court is making a value judgment. Question is how much deference and under what circumstances Irwin Toy QC legislation banning commercial advertising directed at children under the impairment is justified. Court divided on minimal impairment issue. Majority raises the idea that the courts must be deferential. This case is about competing social interests, not state vs. individual. In this kind of case, must show deference. RATIO: Where the case involves competing social interests and not the state vs. the individual, legislatures should be deferred to. RJR MacDonald 5-4 Ban is not justified. 15

16 RATIO: Shouldn't take the notion of deference too far. State must still justify the Charter infringement. Cannot take away the burden of proof under the guise of deference. The distinction between state vs. individual and competing social interests is not easy to find. Nfld. v. Nape Unanimous. Oakes #1. Objective was clear. Question was how much deference do you give to a budgetary objective? Court said budgetary objective was a pressing and substantial objective. RATIO: Charter mandates judicial review Sauve v. Canada (Chief Electoral Officer) One of the best examples of SCC dealing with deference issue. 5-4 Breach is justified. Oakes #1 Pressing and substantial objective: Majority disagreed with the objectives. Objectives are vague and symbolic. Dissent says that objective might be a vague and symbolic idea, but it's still valid, b/c it's really a matter of opinion. Oakes #2a Rational Connection: Majority says that the rule of law is not supposed to arbitrarily take away people's rights. The right to vote is being taken away based on the length of the sentence they got, not the actual crime committed. Dissent says that the objective is logically furthered by the means. You have a reasonable social philosophy by which the government is operating. Oakes #2b Minimal Impairment Majority: Not a minimal impairment. No relationship to crime committed. Dissent: This is a point for deference to Parliament Oakes #2c Proportionality Majority says that this law is self-defeating. There is no beneficial effect. Not only are you taking away votes from prisoners, you're also imposing an undue burden on a particular group (aboriginals) Dissent says this is about values. Just b/c the government picked one, court should not overturn it b/c it would have picked the other one. Remedies Authorizing Constitutional Provisions Courts have taken a robust approach to designing remedies for Charter violations. Three issues arise with respect to the court's application of remedies: 1. Impact of a remedy on legislative sovereignty. Some argue that the tension between the courts and legislature is relieved b/c it creates a dialogue between the two. 2. Point of a remedy: Is it to address the problem of the applicant? Or is it to take 16

17 a more social approach? 3. Courts should not re-write legislation. Section 52 Used to nullify laws that violate the Charter. Codifies what was already happening. Does not seem to confer any discretion on the part of the court. But court has interpreted to the extent of the inconsistency as giving it some discretion with respect to how that law gets treated. Court say that s. 52 authorizes six possible remedies (inexhaustive): 1. Declaration of invalidity Invoking the full force of the section. Total protection of the Charter right. This is a total infringement on legislative sovereignty 2. Temporary Suspension of Declaration of Invalidity Delays the taking effect of a declaration of invalidity. Used to give legislators the time to change th e law to make it comply with the Charter. Usually used where absence of th e legislation would cause some sort of harm or chaos to society. On the one hand, preserves legislative sovereignty b/c you haven't actually struck out the law. On the other hand, there's an interference with legislative sovereignty b/c you're forcing something onto the government's agenda. Makes Charter rights sound insignificant, b/c they are still being infringed during the temporary suspension. 3. Severance Cutting out the provisions that violate the Charter. Can cut out the offensive legislative provision and leave the erst of the statute standing OR Can simply strike out the offensive wording in a section (controversial). Logical fiction is that given the choice between striking out the whole provision or just the words, the legislature would prefer the latter. Interferes substantially with legislative sovereignty b/c courts are rewriting legislation. 4. Reading In Adds in words to make the legislation constitutional Arguably preserves legislative sovereignty b/c it allows the legislation to stand. Counterargument that it changes the wording/meaning of the law and thus interferes with legislative sovereignty 5. Reading Down Reading a statute to give the benefit of the doubt to its constitutionality Serves the interests of legislative sovereignty by preserving the law 17

18 Interferes with legislative sovereignty by putting extra parameters into the law that aren't there on the surface Some argue that it's not a great remedy for Charter violations b/c you're basically giving people a way out. 6. Constitutional Exemption Court has never actually used this remedy Court interpreting the application of the statute, not the wording itself. Serves th e interests of legislative sovereignty by preserving the law Interferes with legislative sovereignty by putting extra parameters into the law that aren't there on the surface Schacter Discusses remedies available under s. 52. Important for what it says about the various remedies. s. 52 authorizes either a full declaration of invalidity or something less. The purpose of severance and reading in is to try to be true to the Charter as well as the legislative intent. Severance: Use Inextricably bound test. Would the legislature have enacted the provision without the words that you want to sever? If not, then severance is not appropriate. Reading in: Guidelines: When it's necessary to cure the Constitutional defect When you're including something that is consistent with the legislative objective Where it's not a substantial change to the cost of the program If striking down the legislation would be an inferior remedy in the sense that doing so would deny others something they should be entitled to. Temporary suspension of invalidity is appropriate where: striking down the legislation as a whole would endanger the public striking down the legislation would threaten public order striking down the legislation where the problem is underinclusion This is a serious remedy. It allows a violation to remain in force. Outlines general considerations when deciding which remedy to use: How precisely does the remedy rectify the problem? Deference, especially with regard to budgetary considerations Must consider what will happen to the rest of the legislation What's the proportional relationship between the provisions that violate the Charter and the rest of the statute? Is it a standalone part or is it integral to the Act? Majority: If under Oakes, the objective of the legislation violates the Charter, then must strike the whole thing out. If under Oakes, the means are not rationally connected to the objective, 18

19 then must determine how much of the legislation is connected to the objective. If under Oakes, it's proportionality/minimal impairment, may be appropriate to apply reading in or severance. M. v. H. Spouse did not include same-sex partners. Court considered (from Schachter): how precisely can we correct the violation with a remedy? Would it affect the budget of the government? What effect does it have on the remaining legislation? Court did not read-in same-sex b/c it would inadvertently affect other legislation due to the nature of this specific law. Issued a suspended declaration of invalidity. Left it in the hands of the legislatures Vriend v. Alberta AB Human Rights legislation violates the Charter by underinclusion, b/c it doesn't protect him on the basis of sexual orientation. Court reads in sexual orientation into the Act, so that it's like all the other provinces. Court asks itself whether the legislature would rather have not passed any human rights legislation at all, or would they have passed human rights legislation that included sexual orientation. Section 24(1) Applies only to a Charter breach. Recognizes that the Charter is an individual rights document. Devises a remedy for the individual. s. 24(1) remedies are not designed to be global. Only designed to be for the person whose rights are violated. Only a court can issue a remedy, not a tribunal. Discretionary. There is no obligation on the court to devise a personal remedy for the person whose Charter right has been breached. Remedies can be: damages? Injunction? Declaration that the person's Charter rights were violated (most common) Little Sister's Argued rights of freedom of expression and the rights of equality (of others) were being targeted by customs officials. Asks for two remedies: Statute be found invalid Declaration that in operation of that statute, their equality and freedom of expression rights had been violated. Court said statute itself did not violate the Charter. So, s.52 does not provide any remedies. 19

20 Court refused to grant the injunction under s.24, saying that the evidence before them was too old. Simply granted a declaration that their rights had been violated. Dissent said that this was a systemic problem. Statute needed to be changed and a remedy imposed under s. 52. This case shows the different in effect that remedies can have on the applicant. A remedy under s.52 has a more systemic effect. Doucet-Boudreau v. Nova Scotia Trial judge issues a court order that the government should implement a french language program by a certain date and that the government should report back to the court. SCC 5-4 s. 24 allows a court to take on a continuing and monitoring role. Court's jurisdiction to grant remedies under s.24 need to be viewed expansively and generously. Considerations that the court should think about when devising a s.24 remedy: designing a remedy that meaningfully vindicates the rights of the claimants that the remedy use means that are legitimate in a constitutional democracy that the remedy involves courts functioning like a court and not like a legislature that the remedy does not impose substantial hardships on the party against whom the order is made. Dissent says courts should not supervise their orders b/c in doing so, they exceed the division of powers between the executive, administrative and judicial branches of government. Robust application of the Charter must be tempered with recognition of the court's role in context with the other powers. Outstanding Issues Regarding Remedies Can you give remedies concurrently under s.24(1) and s.52? R. v. Demers Court holds that under particular instances, you can use both remedies together. Issues a temporary invalidity. Says that if the law has not changed after that, court will issue s. 24 remedies for each person who comes before the court. Emphasizes rare occurrence. Turns it into a rule where s. 24 and s. 52 don't operate at the same time. 3.B. Substantive Charter Rights 20

21 Section 2(a): Freedom of Religion Protects against: prohibition of a religious practice compulsion of a religious practice having to have a religion What is religion / conscience Sincerity: evidence of religion Something of a spiritual nature What is freedom The Test for a Violation of Freedom of Religion Big M Drug Mart Federal Lord's Day Act. When created, had the clear goal of preserving the Christian day of rest. Preliminary issue of standing: Court said Big M could bring the application b/c the law affected it, even though Big M directly couldn't have freedom of religion. Issue: Does the LDA violate freedom of religion? If so, can it be saved under s.1? Majority (Dickson) said that must look at the purpose and effect of all Charter rights when being challenged. Must look at the purpose of the Act when it was passed, not its current purpose. Court defines freedom of religion: freedom = absence of coercion and absence of restraint freedom of religion = includes right to entertain religious beliefs, to declare those beliefs openly and without fear of reprisal, and the right to manifest religious beliefs by worship, practice, teaching, or communication. Court finds the LDA violates freedom of religion in its purpose, which is to coerce people to follow a religious practice. If a law violates a Charter right in its purpose, step one of the Oakes test is not met. No need to go further. Edwards Books and Art v. The Queen ON Retail Business Holidays Act. Court says purpose of the Act is to impose work standards, not to impose a religious belief. The effect of the Act is to violate freedom of religion b/c it restrains people's ability to pursue their own religious practices. Rejected the idea that it coerced people. Any coercion was incidental. Under s.1 Oakes test: Minimal impairment: satisfied b/c there are built-in exemptions into the 21

22 law. Dissent (Wilson): not minimally impairing. Dissent (La Forest): Even without the exemptions, it's a minimal impairment. Dissent (Beetz): The law does not create the disadvantage. It's the choice of religion. Syndicat Northcrest v. Anselem Freedom of religion under QC Charter. Significant b/c Court offers a definition of religion. Bylaw of a condo complex prohibiting anything from being constructed on your balcony. This includes succahs. religion = belief or practice that's rooted in the pursuit of a divine/spiritual/superhuman/controlling power. More than just I feel like it. To rely on freedom of religion, must show that: you have a belief that has a nexus (connection) to religion as just defined it is a sincere belief. If both things have been established, then automatic violation of freedom of religion, unless it's a trivial infringement. Dissent (Bastarache): Establishing a religious belief requires: belief objective nexus/connection to a religion sincerity Zylberberg v. Sudbury Board of Education ON Public school regulations deciding opening and closing rituals for school day. Built in exemptions for students who did not wish to participate in the recitation of the Lord's Prayer. Issue: Does the exemption mean that it doesn't violate freedom of religion? CA Majority holds that the law violates freedom of religion. Takes expansive view of coercion. Coercion here is forcing a child to declare a religious affiliation. Not trivial infringement. Under s.1, did not pass step 1 = pressing and substantial purpose. TWU v. BC College of Teachers BC College of Teachers refused to accredit TWU's teaching program b/c students in the program were required to sign a form stating that they were against homosexuality. SCC said that freedom of religion deals with both belief and manifestation. Freedom of belief is absolute. Freedom of religion would protect the rights of these students to believe whatever they want. Can only be restricted when it manifests itself against other rights, which should be balanced under s.1. Conclusion: Big M: Frredom in the context of all Charter rights, includes their right not to be coerced and the right not to be restrained. 22

23 Zylberberg: How the court views the idea of coercion very broadly Big M: religion includes belief, declaration, and manifestation. All protected under 2a. Anselem: religion must be a belief with spiritualness. Must have a nexus. Where freedom of religion conflicts with other rights, balancing is done under s.1 Right to believe something is unlimited. Only in its manifestation of belief does the s.1 balancing come in. Test to see if a law violates freedom of religion (Big M) If the purpose of the law is to coerce or restrain a religious practice, then freedom of religion is violated. If the purpose is not to coerce or restrain a religious practice, if the effect of the law is to restrain a religious practice and if that restraint is not trivial, then freedom of religion is violated. A trivial restraint would be a restraint that has an incidental effect on your right. If the effect of the law is to coerce a religious practice, freedom of religion is not violated if all the law is doing is incidentally conforming to a religious practice. Coercion that translates into incidental conformity does not violate freedom of religion. Edwards Books. Reference re. Same-Sex Marriage No Federal Act defined marriage. Courts and marriage registrars were using the common law definition of marriage passed down from UK Hyde v. Hyde. Couples made court challenges arguing that they wanted an injunction or declaration compelling registration of marriage or the issuance of a marriage license. Although the Charter may have precipitated this action, this case was really about division of powers. Halpern: Court rejects the idea that marriage and religion have anything to do with each other. This bill had only two provisions: Defines marriage as the lawful union of two persons to the exclusion of others. Nothing in this statute affects the freedom of religious officials. Question 1: Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent? Does the federal government have the exclusive authority to revise the definition of marriage? Does the federal government have the exclusive authority to say that it won't affect religious officials? Answer 1: s. 1 of the Proposed Act is within the exclusive legislative 23

24 competence of Parliament, while s. 2 is not. Answered based on the principle of exhaustiveness and the Living Tree doctrine. Prima facie, the Proposed Act falls within a subject matter allocated exclusively to Parliament (91(26)). Question 2: If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the CCRF? If not, in what particular or particulars, and to what extent? Basically, freedom of religion (2a) and right to equality (15). Answer 2: s. 15: Purpose of the law is to expand rights, so it's consistent with s. 15. Recognizing ss marital rights does not discriminate against hs couples. s. 2a: Simply recognizing someone else's equality rights does not infringe on someone else's equality. Doesn't affect someone else's religious views. We have no evidence that the legislation is going to cause a collision of rights between the ss community and opposed religious groups. Can't decide on that in the abstract without facts. Question 3: Does the freedom of religion guaranteed by paragraph 2)a) of the CCRF protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs? Answer 3: Freedom of religion protects against state compulsion to act against a religious belief. Doesn't answer the question of someone who is not a clergyperson who does not want to perform a ss marriage. Question 4: Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and wet out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the CCRF? If not, in what particular or particulars and to what extent? Answer 4: Decline to answer b/c: Government has stated its intention to address the issue of ss marriage by introducing legislation, regardless of the SCC's opinion on this. Practical realities: people have decisions and have acquired rights that are entitled to protection. A decision could cause discrepancies across provinces. Would undermine uniformity of the law. 24

25 Section 2(b): Freedom of Expression Why is freedom of expression protected in the Charter? Core values: Democratic participation Pursuit of truth Individual autonomy or personal fulfillment Freedom of expression includes the right NOT to express yourself. Right to silence. What is expression Definition: Any action designed to convey meaning, except for physical violence. action = mode of expression is irrelevant. Can be speech, drama, etc. designed to convey meaning = Purpose of the action must be to communicate. Content-neutral. Doesn't matter who you're trying to convey meaning to. physical violence = causing of physical harm to persons or property. Emotional harm is not considered violence for the purposes of 2(b). It's about your intention. Subjective. What is freedom A law will violate freedom of expression if its purpose is to curtail the message or meaning being conveyed. Focused on content here. A law will violate freedom of expression if its effect is to curtail your message AND your message is based on or promotes one of the core values of the freedom of expression The Test for A Violation of Freedom of Expression First, must find out if the activity in question is expression. Subquestion: is the activity violent? If it's violent, then there is no protection. Subcomponent: does the activity attempt to convey a meaning? If no, then no protection. If yes, then we have an expression. Second, is the law violating that freedom of expression? Is the purpose of the law to restrict expression? If so, then 2(b) violation. If not, then go onto the effect of the law. Is the effect of the law to restrict the message? If yes, then you have to ask if the message meets one of the core values of freedom of expression. If yes, then there is a violation. If no, no violation. Irwin Toy Issue: Whether ss. 248 and 249 limit freedom of expression as guaranteed by Canadian and QC Charters. First step: Is it expression? Yes. It attempts to convey a meaning, has expressive content, and is not violent. Second step: Is the law violating that freedom of expression? Purpose: 25

26 If the government's purpose is to restrict the content of expression, then violates. If the government's purpose is to restrict the form of expression in order to control access by others to the meaning being conveyed, then violation. If the government's purpose is to restrict the time, place, or manner of the expression, then violation IF you can link your message to one of the core values. Effect: Burden is on plaintiff to demonstrate the effect of the restriction of free expression. Must show that the plaintiff's activity promotes at least one of the core values: democratic participation pursuit of truth individual autonomy and person fulfillment. This law violates Irwin Toy's freedom of expression. s. 1 analysis: Majority: legislation is saved under s. 1. Dissent: legislation is not saved under s.1 This case establishes that commercial expression is protected by the Charter. Also establishes the content-neutral nature of the 2(b) right. RJR MacDonald Unattributed health warnings on cigarette packages. Court found that the legislation violated freedom of expression b/c being forced to include the unattributed health warning violated the right to remain silent. Court found that it was not saved under s.1 Pressing and substantial objective: ok Rational connection found Minimal impairment: not ok. It's a complete ban on advertising. Court takes issue with the idea that the value of the statement should be a component of the enterprise. But in subsequent cases, the court goes back to notion of sliding scale of stringency. R. v. Keegstra AB highschool teacher charged with promoting hatred against Jews. CC provision violated freedom of expression, but saved under s.1 SCC narrows down the violence definition to only physical violence. 4-3 s. 1 analysis: Majority find the legislation justified under s.1: Pressing and substantial objective: protect against harms caused by hate propaganda this expression is clearly of little value compared to the core values, so the s.1 standard is less. Dissent find the legislation not justified under s.1: Provision is overly broad. What do we mean by hatred? R. v. Zundel 26

27 Court says you have a constitutional right to lie. CC provision is not justified under s.1. Butler Sold hardcore porn. SCC said that the obscenity law violated freedom of expression, but justified under s.1 S. 1 analysis: Pressing and substantial objective: The justification is to prevent a reasonably apprehended harm. Rational connection: Reasonable apprehension of harm. Logical connection is sufficient. Minimal impairment: Undue in the legislation is sufficient basis for the court to judge on its own test whether someone's gone too far. Proportionality: There is very little core value to this type of expression. Overall, the provision is justified b/c it's only designed to catch the sale of violent of dehumanizing porn. Artistic expression has sufficient exemption. R. v. Sharpe Charged under cc provisions prohibiting possession of child pornography Crown Counsel conceded the violation of s. 2(b) Majority says that freedom of expression includes possession of materials that convey a message. Dissent says that since the Crown conceded the violation, we never got to look at the facts, so we should not be ruling on this point. 6-3 on s.1 analysis Majority: violation of freedom of expression NOT justified. Objective: prevent harm to children Rational connection: There is a rational connection between the objective and the legislation. Minimal impairment: the legislation is too broad. Catches storywriters, etc. Remedy: reading in exemption rights into the statute. Dissent: violation of freedom of expression is justified. Objective: prevent harm to children Minimal impairment: The legislation only minimally impairs the right to freedom of expression b/c the defences that are already available are sufficient for someone who is not causing harm. Dissent focuses on the low value of this expression. This expression is linked to the expression of personal value only in its most base aspect. Time/Place/manner restrictions On one hand, these kinds of restrictions are not as strict. On the other hand, they are more restrictive b/c can prevent any message regardless of content Where you have a law that restricts time/place/manner AND your expression is related to one of the core values of freedom of expression, your right is violated. Public property 27