constitutional spring outline - university of victoria...

CONSTITUTIONAL LAW

FALL OUTLINELAW 100 (Y03)

Prof. Jeremy Webber

Outline by Brian Eberdt

April 17th, 2007

Specific Powers 1

Division of Powers and Criminal Law 1

RJR-Macdonald v. Canada (A.G.) (1995) 1

R. v. Hydro Québec (1997) 1

Provincial Powers and the Criminal Law 2

N.S. Board of Censors v. McNeil (1978) 2

Westendorp v. R. (1983) 2

Re Rio Hotel Ltd. and Liquor Licence Board 3

Trade and Commerce 3

A.G. Manitoba v. Manitoba Egg and Poultry Association (1971) 3

Post-Carnation Expansion of the Federal Role 4

History of General Branch 4

General Motors v. City National Leasing (1988) 5

The Charter of Rights and Freedoms 5

Introduction 5

Application (s. 32) 6

Dolphin Delivery (1986) 6

McKinney v. University of Guelph (1990) 6

Eldridge v. British Columbia (A.G.) (1997) 7

Godbout v. Longueuil (1997) 7

Vriend v. Alberta (1998) 7

Notwithstanding Clause (s. 33) 8

Ford v. Québec (A.G.) (1988) 8

Section 1 8

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R. v. Oakes (1986) 9

Freedom of Religion 9

R. v. Big M Drug Mart (1985) 10

R. v. Edwards Books and Art (1986) 10

Freedom of Expression 11

A.G. of Québec v. Irwin Toy (1989) 11

RJR Macdonald v. Canada (1995) 12

R. v. Guinard (2002) 12

R. v. Butler (1992) 13

Little Sisters 13

R. v. Sharpe (2001) 13

Equality Rights 14

Andrews v. Law Society of BC (1989) 14

Law v. Canada (1999) 15

Canada Foundation for Children, Youth and the Law v. Canada (2004) 15

Halpern v. A.G. Canada (2003) 16

Eldridge v. B.C. (A.G.) (1997) 16

Section 7 16

Reference re ss. 193 and 195.1(1)(c) of the CC (1990) 16

Gosselin v. Québec (2002) 17

Chaoulli v. Quebec (A.G.) (2005) 17

Recognition of Aboriginal Treaty Rights 18

R. v. Sparrow (1990) 19

R. v. Van Der Peet (1996) 19

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Delgamuukw v. BC (1997) 20

Recognition/Accommodation of Collectivities 20

Mahe v. Alberta (1990) 20

Postscript 21

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SPECIFIC POWERS

Division of Powers and Criminal Law• s. 91(27) stipulates the FG’s criminal powers• formal definition of a criminal law: prohibition + penalty• there’s clear acknowledgement of the difficulty of exhaustively listing crim. law’s purposes• some requirements of criminal laws are stipulated

• must combat a public wrong, not merely a private wrong (i.e. to one person)• must combat an issue necessitating attention of the stigma of criminal law

• in Margarine Reference, court struck down FG’s attempt to use 91(27) to protect dairy industry as an abuse of power

• public wrong was deemed to be irrelevant (there were no longer health concerns)• creates new requirement: law must be in furtherance of purpose appropriate to criminal law (e.g. public

peace, order security, health, morality, etc.)• in spite of Margarine, remember that criminal law can regulate economic activity (e.g. Combine legislation)

RJR-Macdonald v. Canada (A.G.) (1995)

• issue: does tobacco advertisement regulation fall under 92(13) or 91(27) criminal law powers?• form and purpose of criminal law considered more closely

• focus on interplay between the two• test for validity met:

• formal requirement met: clear prohibition and penalty• purpose was valid: protection of public health

• attack on legislature for acting in part measures; i.e. they should have just regulated smoking itself• court finds legitimacy in acting in part measures (e.g. prostitution, assisted suicide, etc.)• moreover, it would not be feasible to prohibit sale of tobacco itself

• effect:• consideration formal requirement of prohibition + penalty becomes less straightforward

R. v. Hydro Québec (1997)

• issue: are provisions of the Environmental Protection Act ultra vires FG’s criminal law powers?• held: in 5:4 split, provisions were valid as criminal law, thus POGG analysis was unnecessary• provisions had been considered under the national concerns branch of POGG at federal court• decision pokes holes in the prior test for criminal laws

• concern of toxic substances is different than health concern of RJR• punishment would be handled by a regulatory board (i.e. unknown at outset)• minority sees provisions as much more regulatory than criminal

C o n s t i t u t i o n a l L a w S p r i n g O u t l i n e

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• majority:• held that the leg. combated the social ill of pollution in general, which pertains to health concerns• formal requirement satisfied (barely): # and range of controlled substances required the regulatory bd.• overlaps into provincial powers are permitted by paramountcy

• this is the high water mark for regulatory forms being permitted as criminal law• decision was not well received

• decision shows confluence between reqs of a criminal law

• Firearms Act represents the upper limit of the 91(27) powers• required people to register firearms, which would usually fall under 92(13) Property and Civil Rights• met formal requirement and deemed to preserve public safety

• but any licensing scheme would have similar penalties• act was upheld due it’s being so close to the heart of criminal law purpose

Provincial Powers and the Criminal Law• province is permitted to create certain offences under s. 92(15)

• scope of FG’s criminal laws will often overlap with that of the province

N.S. Board of Censors v. McNeil (1978)

• issue: is the PG permitted to create a screening board to ban movies with unwanted content?• Ritchie’s majority (FOLLOW CAUTIOUSLY): YES

• falls under regulation of local business and regulation of property, thus 92(13)• formal requirement: no penalty in a strict sense, but preventative measure instead• PG is allowed to legislate in reference to local standard of morality

• Laskin’s dissent (has been followed more): NO• censorship is reserved for federal law

• morality is seen as almost co-extensive with criminal law• civil liberterian concerns / Switzman v. Elbing

• padlock law, protecting a public wrong, was struck down as ultra vires PG’s powers• protecting society against a wrong falls under criminal law• in this manner, the court’s decisions is being shaped by civil libertarian concerns

• we see the court straying away from a strict reliance on form• establishes the language that will be used to interpret the law in subsequent cases• still good law in theory, but restrained by subsequent decisions

Westendorp v. R. (1983)

• issue: the constitutionality of Calgary’s provisions to control prostitution


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• held: unanimously, SCC rules by-law to be invalid• was deemed to be defending undifferentiated public interest• dealt specifically with prostitution (could have legitimately regulated occupation of sidewalks, nuisance)• penalties were out of proportion with other by-laws• was incongruous with the related, surrounding by-laws

Re Rio Hotel Ltd. and Liquor Licence Board

• issue: was NB permitted to prohibit topless dancing via liquor licensing initiatives• held: legislation was found reconcilable with provincial powers 92(13)

• characterized legislation as directed at a marketing device, not morality• Webber finds profound disingenuousness in decision

• court mis-stepped in ruling that this was not in reference to moral concerns (Estey’s dissent agrees)• NOTE: NB had already had more direct offences that had been struck down by the courts• revocation of a liquor license resulted in de facto penalty

Trade and Commerce• ss. 91 and 92 stipulate various industries governed by and subject to federal regulation (we looked at 91(27))• this section of the course considers what exactly is captured by s. 91(2): Regulation of Trade and Commerce• Parsons (fall semester) clarified the limits of 91(2)

• does not authorize regulation of all economic activity• mere inter-provincial economic activity does not require that it fall under FG

• 92(10) covers such things as bridges and transport crossing provincial boundaries• most economic regulation delegated to provinces is within ss. 92(15) and (16)• three branches of trade and commerce

1. political arrangements - foreign affairs2. regulation of trade in matters of interprovincial concern - considered in Manitoba Egg3. general regulation of trade affecting the whole dominion - covered in City National Leasing

A.G. Manitoba v. Manitoba Egg and Poultry Association (1971)

• issues: does Manitoba Egg leg. infringe upon 91(2)• held: it does; Ottawa has exclusive jurisdiction over transactions that occur over a provincial boundary• supply management schemes

• ensured that farmers would get adequate price for their products (combat the ills of price fluctuations)• board stockpiles product when supply is good and rations when supply is bad• criticized for monopolizing control of the market

• case dealt with regulations that were prohibitive to egg suppliers from other provinces


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• context: Manitoba hoped the regs would be struck down, so that court would strike down similar legislation in Ontario and Québec that kept them out of their markets

• Shannon and Home Oil used to show that regulations may apply to products produced outside the province• provided they ONLY pertain to the sale and use of the products within the legislating province

• incidental effects on inter. prov. trade are valid• discriminating against an imported product might make focus of leg. on inter. prov. trade

• Pigeon J. voices concern about Manitoba egg producers sitting on the regulatory board• reaction: formation of marketing boards which regulate trade through delegated prov. and fed. powers

Post-Carnation Expansion of the Federal Role

Carnation (cited in Manitoba Egg)• free market rationale rejected - PG’s regs. on milk packing plant (which mainly exports) are valid• rationale: PG’s regulations are okay if industry is wholly within province• impact on international trade deemed incidental• narrowed the trade and commerce branch

Murphy (1958)• federal leg. tried to regulate grain destined for international export• created regs for transactions btwn farmrs and grain elevators• transactions were wholly within province• held intra vires federal power because effect was reg. of international export

• Caloil (1971)• converse of Murphy: FG allowed to reg. prov. transactions relating to imported good (oil)• FG stipulated region of legitimate importation within Ontario• was upheld as relating to international trade

• Klassen (1960) Manitoba C.A. (not SCC)• expands FG’s jurisdiction further• FG allowed to regulate entire industries in which products that are mostly destined for foreign market• it’s good law, but of very limited application

• developments are criticized in defence of free market, but upheld on ‘nation building’ rationale

History of General Branch

• court questions interpretation of the branch used in Parson, Canadian Standards, and John Deer• Macdonald v. Vapour Canada (1976)

• federal legislation creating civil actions and remedies around IP (dealt w/advertising)• found ultra vires due to overlap with pre-existing provincial remedies

• Labatt Breweries (1979)• federal regulation of beer labels (“Light Beer”)• found to infringe on PG’s authority to regulate production processes


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• CN Transportation (1983)• minority upheld Combines Investigation Act under general branch of s. 91(2)

General Motors v. City National Leasing (1988)

• issues:• how does “general regulation of trade” differ from the regulation of particular trades of 92(13)?• how does it differ from private law, which also falls under 92(13)

• held: civil remedies of Combines Investigation Act were intra vires FG power• the Act created civil remedies for those wronged by anti-competitive (monopolistic) conduct• decision was part of a broader attempt to expand 91(2) power

• courts struggled to find a way to do this that would not unduly infringe upon PG’s power• Laskin responds by creating a 5 requirements of valid 91(2) powers (the first 3 from Vapour)

i) leg. must be part of a general regulatory schemeii) scheme must be under oversight of a regulatory agencyiii) deal with trade as a whole, not a particular industryiv) must be of a nature that province would be unable to enactv) failure to include one or more of the provinces would jeopardize operation of the scheme in other parts

of the country• Dickson refers to provincial powers as exceptions to 91(2) powers

• THIS IS AN OVERSTATEMENT - in actuality, few matters satisfy the 5 step test• Webber suggest an alternate way to consider 91(2): look at what sort of things are upheld by other subs of 91• 3 step test established for valid civil remedies

1. is there an intrusion on provincial power; to what extent• although intrusion was found, it was justified by remedial purpose

2. is primary legislation valid• yes

3. is impugned provision sufficiently connected to main legislation• this step is considered in light of the intrusion into prov. powers

• thus, the civil remedies passed the test of validity

THE CHARTER OF RIGHTS AND FREEDOMS

Introduction

• remember that rights are also protected by provincial human rights codes and the Bill of Rights• the Charter goes further by constitutionally entrenching these rights• Hogg suggests that the Charter creates a dialogue between legislature and judiciary which is good

• Petter points out the downsides of dialogue theory• in favouring the courts (non-representative), he finds that it undermines democracy

• Four Generations of RightsC o n s t i t u t i o n a l L a w S p r i n g O u t l i n e

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1. Civil and Political Rights• Charter rights, human rights codes, and the Bill of Rights lie here• ensure balance between the legislature and the executive (Roncarelli)

2. Economic Rights (e.g. minimum wage, labour relations acts)3. Social Rights (recognizing substantive equality)4. Rights Beyond the Human Realm (e.g. environmental and animal rights)

Application (s. 32)• s. 52 often arises in this discussion - it establishes pre-eminence over pre-existing law• Three Views of Charter Application

1. Executive and Legislatures Only (generally adopted by the courts)2. Executive, Legislatures, and Judiciary3. All State Actions

• articulates the presumption that the Charter applies distinctly to government action• rationale: there is a suspicion when it comes to rights and the government

• thus higher level of scrutiny is required gov. than for private individuals

Dolphin Delivery (1986)

• issue: can the Charter also apply to private actions (horizontal application)• held: Charter only applies to common law when manifested by executive action ∴ no application here

• it will apply to courts only when they’re acting as an administrative entity• it will apply to the Civil Code only when it is the source of rights limiting conduct

• Purolator’s union argues that the torts filed against them for picketing infringe their 2(b) FOE rights• the Charter will rarely have application to private law, but employees were charged on a common law provi-

sion (grey area)• thus, courts were excluded from state action as they were merely “neutral arbiters” - VERY IMPLAUSIBLE• private action vs. private litigation

• in the latter, the action may have emanated from a state action• here, they emanated from a private party• later, in BGEU, a judge’s crossing a picket line was deemed to draw Charter application as courts were

acting in a governmental capacity• in Québec, private law is codified, thus McIntyre says all private law would draw Charter application

• this result would be absurd and was rejected in Tremblay• one of the most criticized Charter decisions

• subsequent cases have ‘whittled away’ from the decision - but haven’t overturned it

McKinney v. University of Guelph (1990)

• held: Charter does not apply to universitiesC o n s t i t u t i o n a l L a w S p r i n g O u t l i n e

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• helps to define where the Charter-scrutinized government ends• questioned whether the university’s age discrimination could be struck down on Charter grounds• establishes test for what will attract Charter scrutiny

1. must be an “organ” of the government• determined by whether legal control is vested in the government• involves examination of the governing body of the entity (gov. or no), whether gov. has legal control,

whether it pursues its own goals2. even if step 1 is unsatisfied: there must be a specific function imposed on the entity by gov.

• if affirmative, only that function will attract scrutiny• in Slaight this test brings scrutiny to arbitrators acting pursuant to the Labour Code

• here the test applies uniquely to collective agreements, which is why scrutiny is escaped• rationale: these agreements are formed by private entities, not government

Eldridge v. British Columbia (A.G.) (1997)

• issue: whether hospitals, in failing to provide services for deaf patients attracts scrutiny• appellants claimed that the failure was physical discrimination as per s. 15• McKinney application

• step 1: no - not organ of government• step 2: passed - the function of exercising discretion (permitted by leg.) is what attracts scrutiny

• court held that this must exercise must be consistent with Charter values

Godbout v. Longueuil (1997)

• issue: are municipalities subject to scrutiny*• appellant challenged Longueuil’s requirement that employees be residents of the city• majority struck down the provisions based on the Québec Charter• minority created third step (functional test) of McKinney test :

• examined the city’s functions and found so many to be governmental that Charter should apply• thus, everything a city does would be subject to scrutiny• represents a return of the functional test that had been rejected in McKinney

• Hogg sees this as settling the matter over municipalities, Webber disagrees• * there’s a strong argument that municipalities do not pass the McKinney as per the Charter

Vriend v. Alberta (1998)

• held: Charter can apply to legislative inaction• appellant could not make rights complaint because leg. lacked sexual orientation as a protected ground• courts were fearful of being restrictive: punishing provinces for attempting (part way) to protect rights


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Notwithstanding Clause (s. 33)• most criticized dimension of the Charter

• BUT has only been used 17 times (14 of which were in Québec)• despite criticism, Paul Martin’s attempts to abolish it were unsuccessful

• only applies to ss. 2, 7-15• ironically, these are the less controversial, but more fundamental rights

• Webber notes, given controversial nature of Charter rights, legislature should have some say• at least legislature is voted, whereas in SCC, only 9 people vote

• who is in best position to make these decisions? it depends on the issue:• legislature is best-structured to deal with a variety of views• in contrast, courts only hear from two-parties in an adversarial setting

• there has been greater controversy in the application of s. 1• Saskatchewan and Manitoba argued against a constitutionally entrenched charter of rights

• feared to much power in hands of the courts• how to use s. 33:

• must be expressly invoked• use is subject to 5 year “sunset clause”

Ford v. Québec (A.G.) (1988)

• issue: are ss. 58 and 69 of Le Chartre de la Langue Française constitutional?• held:

• corporate names provision (s. 69) was struck down on Charter AND Québec Charter• sign provision (s. 58) was struck down on the Québec Charter only

• context: new liberal government under Bourassa, 1984 was allowing prior s. 33 invocations to lapse• plaintiff argued that s. 33(2) requires greater specificity of application than existed here

• court responded that s. 33 CAN be used in a blunt fashion (otherwise it would be ineffectual)• Bourassa probably could have invoked the clause w/out s. 33 - it’s use was more for symbolic reasons

Section 1• provides a structure with which to assess Charter infringements (Oakes test)• court argues that the difficult burden to justify infringements has effect of better protecting rights• debate over meaning of “prescribed by law”

• appears to only refer to legislation• Therens establishes that the common law is to be included within “law”• Irwin Toy that the term will be interpreted with judicial discretion

• but, there must be an intelligible standard to determine whether restriction should apply• Osborne then weakens the requirement: it only fails to apply were language is overly vague/obscure


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R. v. Oakes (1986)

• issue: is the s. 11(d) unconstitutionality of the reverse onus of s. 8 of the Narcotics Act saved by s. 1?• onus is on government to show that limitation is justified (on balance of probabilities)• arguments must be factual, based in evidence• Two-Part Test

1. is the objective “pressing substantial”• purpose must be seen as sufficient for justifying override of freedom• this step is usually met quite easily

2. are the means to justify that purpose proportional, based on three grounds:a. rational connection between purpose and leg.b. minimal impairment - right is limited to the least extent possiblec. general proportionality

• most cases turn on minimal impairment and general proportionality• the test simpler to apply in the criminal context ∴ courts will apply it more rigourously there• this creates a bifurcation of the test: court will be more ready to defer to legislature w/ issues surrounding

complex social policy• deference is driven by:

• whether it’s a polycentric issue• assessment of complex evidence is involved• allocation of scarce resources (Chaoulli)• realities of drafting• who should make the decision• importance of the purported exercise of the right

• RJR represents a reverse in this trend (SCC is uncharacteristically rigourous in application there)• generally, rigour of application is inversely related to the breadth of the right• s. 1 has been more effective than s. 33 in stoking dialogue between judiciary and legislature

Freedom of Religion• “freedom of religion” has been considered using three sub-freedoms

1. freedom from coerced religious practice• this was the sub-freedom deemed to apply in Big M

2. equal treatment regardless of religious belief• this is seen to be implied by the Charter• BUT violated in the preamble and education provisions, making special conditions for Christians• protected in US by the establishment clause

3. equal treatment for religious and non-religious believers


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• not really addressed by the court• Webber feels that this freedom isn’t actually protected by 2(b)

R. v. Big M Drug Mart (1985)

• held: FG’s Lord’s Day Act constitutional deeemed unconstitutional• general test for standing

• proposed: if you have an interest beyond a normal citizen’s interest you may validly bring action forward• this was deemed too constrictive ∴ req. became that you merely had a reason to complain• less clear in assessing standing of corporations

• ultimately, decision was unnecessary because Big M had been prosecuted• thus they could validly challenge the law (where the focus should be)

• issue remains controversial• some argue that costs of Charter litigation only allows corporations to bring claims forward

• purpose vs. effect• Wilson (concurring) argued that they should only consider effect• Dickson argued that they should look at purpose first, the effect (if purpose is legitimate)

• this approach was allowed• application:

• purpose of Lord’s Day Act is clearly religious• resp. argued that it could be upheld for secular purpose (citing labour movement’s reasons)• SCC held that legislative purpose will not be permitted to change (NO SHIFTING PURPOSE)• also, secular purpose would place the Act within prov. jurisdiction - 92(13)

• it was only permissible as federal because it was legislating morality• Birks and Hamilton St. had prov. leg. struck down for this reason

R. v. Edwards Books and Art (1986)

• held: PG’s Retail Business Holidays Act deemed to be constitutional• leg. was enacted using 92(13) powers, but there’s clearly a religious element to be dealt with• characterization of purpose:

• common day of rest to allow families to be together• BUT how do you avoid disadvantaging non-Sunday observers (e.g. Jewish Sabbath)

• Beetz and McIntyre reject the 2(b) infringement, arguing:• detriment to those w/ different days of rest is because of their religions• arbitrary day of rest (Tuesday) would be no better

• Dickson states that there must be real detriment to non-Sunday observers to strike down leg.• noting the disadvantage of Saturday observing consumers, court recognizes PF breach and conducts Oakes

analysis• step 1 is passed: people need to have the day off work• step 2 is passed


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• rational connection - SCC justifies focus on retail workers pointing to their vulnerability• minimal impairment - defers to leg. stating impossibility of finding exact balance

• justified by limit on size of retail store: larger the store, less of religious identity• clear evidence of bifurcation occurring

• general proportionality - again defers to leg.• Wilson’s dissent

• rejects the part measures approach of the leg.; it should be all or nothing• in particular, she disagrees w/ s. 3(4) limiting application to stores of particular size• nevertheless, she considers the impugned section to be severable

• Webber sees her approach as overly abstract - lacking consideration of effect on the ground

Freedom of Expression• follows up on 2(a) discussion, particularly aspect of legislative balancing• courts grapple with defining the breath of freedom of expression• Keegstra dealt with hate provisions of the CC and considered nature of FOE• three lasting dimensions of FOE emerge from McLachlin’s dissent:

1. value for democratic political life2. value of FOE as fostering the search for truth (“marketplace of ideas”)3. self-expression (such as artistic expression)

• what about commercial advertising• it would seem far from the dimensions above, but divergence between Irwin Toy and RJR suggest other-

wise• evolution occurs where some FOE is protected more stringently than others

A.G. of Québec v. Irwin Toy (1989)

• issue: do provisions restricting Irwin Toy’s TV ads directed at children infringe on FOE?• held: despite PF infringement, provisions were upheld on s. 1 analysis• establishes the structure of the analysis

1. Is the form or content restricted?• any attempt to restrict content constitutes a PF breach of 2(b)• all forms will be protected except for violent acts

• NOTE: form resulting in violence may be valid2. Was did the purpose or effect of gov. action restrict FOE?

a) purpose restricting form or content may result in PF breaches of 2(b)b) if plaintiff shows effect to restrict form or content, it must be found to prohibit one of the dimen-

sions of FOE listed above• BUT court may regulate physical access to forms• thus leg. against littering is okay, but not pamphleteering


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• courts rely strongly on scientific evidence here• further deference is shown to legislature - letting them make decisions involving complex social policy

• Dickson is expressly mindful of leg’s representative role

RJR Macdonald v. Canada (1995)

• issue: whether leg. restricting tobacco advertising infringed on FOE• held: PF infringement did not pass minimal infringement branch of Oakes ∴ struck down• court reiterates importance of FOE, asserting necessity of a high burden• La Forest’s dissent:

• questions utility of Oakes test in evaluating FOE - advocates for flexible approach• suggest normative inquiry which considers the nature of the right and the values involved

• McLachlin:• slams La Forest’s flexible approach: all Charter rights must be interpreted equally

• thus, she rejects bifurcated approach• BUT in the end, the majority adopts a bifurcated approach

• would have upheld the legislation w/ Oakes• Iacobucci:

• focusses on minimal infringement• notes that there wouldn’t be sufficient evidence for an outright ban• yet, he’d be prepared to accept a partial ban• NOTE THE DOUBLE STANDARD: there isn’t any more evidence for partial ban than outright ban

• key factors from the decision• the punitive element of the decision

• it’s likely that the judges were punishing the government for failing to be forthcoming with their evi-dence surrounding partial bans

• appellate courts overturning interpretation of fact• generally, this should not be done• BUT applies more to adjudicative fact than social science facts

• consistency of s. 1 test• you can’t apply it to all rights equally• such an approach would water down the way they’re applied to truly fundamental rights

R. v. Guinard (2002)

• issue: whether sign by-laws in St. Hyacinthe violate 2(b) rights• held: yes, recognized importance of consumers’ FOE• applying the Irwin test, the by-law had an effect that was unintended, yet it infringed upon the appellants

political FOE• failed Oakes testC o n s t i t u t i o n a l L a w S p r i n g O u t l i n e

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R. v. Butler (1992)

• issue: constitutionality of obscenity provisions of CC w/ regard to 2(b)• held: Oakes is loosened to uphold the provisions• court must first determine the scope of the provisions before they can apply the Charter

• scope of obscenity is significantly tightened• despite opposition, FOE is deemed to apply to pornography

• even though it only depicts physical activity, that’s still expression• LIMIT: if pornography contains violence, it won’t be protected

• Oakes application• pressing + substantial obj.: preventing harm against women (not legislating morality)

• WEBBERIAN MIS-STEP: in effect they’re adopting a shifting purpose• in their defence, it’s more of a shifted emphasis than purpose• and the provision was amended

• rational connection is questioned regarding whether the provs prevent any harm• court responds that only a reasonable basis is required• rationale: high standard of causation w/ broad protections make legislating very hard• further evidence of bifurcation: core FOE restrictions will require more evidence

Little Sisters

• dealt with differential treatment of homosexual pornography• included to show the inadequacy of remedies around Charter violations

• leg. was upheld, but it was the border guards’ conduct that was at fault• if leg. were amended, problem would have been better solved• in court’s defence, striking down law is costly

• take home message: Charter applications are blunt instruments

R. v. Sharpe (2001)

• issue: constitutionality of provisions against possession of child pornography• held: provisions regarding self-created, imagined material and teenagers filming themselves are overreach-

ing• SCC returns to rigid s. 1 approach (different from Butler) because child pornography is far from core of FOE

• however, particular provisions fail proportionality test• l’Heureux Dubé argues that materials that would be allowed would be harmful

• she would rather defer to Parliament• Webber finds this decision to place personal autonomy above protecting vulnerabilities• note on constitutional remedies:C o n s t i t u t i o n a l L a w S p r i n g O u t l i n e

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• regularly, the leg. would be found invalid• alternate options:

• confine judgment to that case, make constitutional exemption, severance, reading down, reading in• fearing risk this would have to valid applications, McLachlin decides to read in the exceptions

Equality Rights• dealt with by ss. 15, 28, 35(4), but we mainly focus on 15

• 28 - gender equality• 34(4) - gender equality in Aboriginal rights

• s. 15 provides equal application of the law• was drafted with intent of avoiding controversy created by Bill of Rights equality provs

• commentators struggle to adequately define equality• formal/facial equality - everyone should be treated the same

• this has the effect of giving people (unwanted) differential treatment• substantive equality (better) - recognizes that differences require different treatment• Hughes’ approach

• focusses on application and articulation of the law to create foundation for equal treatment• Lessard’s approach

• we should focus on the fundamental differences that may be masked by the law• focus on concrete social relations• points out how little gender neutral language has done for same-sex marriage

• equality as distinctions - which distinctions violate s. 15?• ultimately, it’s distinctions on enumerated or analogous grounds

• sadly, it’s very costly to bring forward Charter challenges, so one wonders whether it’s really protecting the disadvantaged groups that it was meant to protect

Andrews v. Law Society of BC (1989)

• issue: whether the citizenship requirement for the BC bar is constitutional• held: majority found PF infringement upheld by s. 1, minority didn’t find leg. within reasonable limit• up until Law, this provided the framework for equality cases• rejects formal equality in favour of substantive equality• three part test for s. 15 violation (onus on plaintiff)

1. distinction in treatment2. occurs on basis of enumerated or analogous grounds

• analogous grounds defined by personal and/or immutable characteristics3. done with “discrimination” (amounts to disadvantage)

• occurs where a burden is imposed or benefit denied


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• Wilson emphasizes that s. 15 is meant to advance the position of disadvantaged, as per 15(2)• it is unknown how to integrate this into the test

• post-Andrews criticism• reasonable grounds of distinction, not filtered by step 1, are pushed to s. 1 test

• Webber feels this has been the source of age-related claims• enumerated or analogous grounds might not catch everything they should

Law v. Canada (1999)

• issue: whether age distinctions in the survivor’s pensions infringe s. 15• held: provs did not infringe s. 15 as per modified-Andrews test• Iacobucci insists on purposive approach• grafts new content onto Andrews framework

• discrimination no longer synonymous with disadvantage• two new requirements to Andrews test:

• perpetuation of stereotype is PF s. 15 infringement (this is actually quite tied in to human dignity)• discrimination must be something that impugns humans dignity, determined by

1. pre-existing disadvantage2. lack of correspondence w/ the group’s needs, capacities, and circumstances3. whether there’s an ameliorative purpose (for a less advantaged grp)4. nature of interest effected

• these new factors become major focus of inquiry• SCC is trying to make test more reasonable, ensuring that legitimate distinctions may be upheld• resembles Hughes’ approach more than Lessard’s

• i.e. they’re not concerned with human dignity per se, but how it’s affected by state action• creates a subjective/objective test:

• how would a person of those conditions feel about the effect of the law

Canada Foundation for Children, Youth and the Law v. Canada (2004)

• issue: whether CC exemptions allowing parents and schoolteachers to apply force to children discriminated against children

• held: upheld provisions finding no infringement with Andrews test• McLachlin (majority) felt that issue could be disposed with by s. 15 test alone

• provisions are saved because court held that leg. corresponds to status of children (factor 2)• Binnie (minority) felt that both s. 15 and s. 1 tests were necessary

• asks what’s left to s. 1 analysis• cautions against the ‘correspondence’ factor resurfacing a prior ‘relevance’ debate


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Halpern v. A.G. Canada (2003)

• held: common law, opposite-sex definition of marriage breaches Charter• sexual orientation is held to be an analogous ground

• it’s a deeply personal, immutable characteristic• recognized as visible minority who have suffered serious disadvantage

• as per Dolphin, the Charter has limits on common law impact, but it can impact it’s development• s. 1 analysis is the same

• was the most significant decision for changing the same-sex marriage situation• Webber feels this decision takes the easy route on numerous points

• it’s unfair to assume that heterosexual and homosexual relationships are analogous with out exp.• only certain factors of the purpose of marriage are considered (loses the big picture)

• this oversimplifies the interaction of the Charter with the complex concept of marriage• instead of revising the marriage def., they should have privatized marriage

• would allow churches to do what they want with the convention

Eldridge v. B.C. (A.G.) (1997)

• [initially discussed in determining application of Charter]• dealt with effects based discrimination and adverse discrimination• what is government responsible for?

• as in Vriend, if legislature attempts to provide services, it must do so w/out discrimination• to what extent must equality be protected?

• here communication between doctor and hearing impaired required protection• SCC is careful to allow “flexible standard” : not every medical situation will require an interpreter

• what effects around the base is Charter not responsible for?• gov. is not obligated to take affirmative action here• discrimination that occurs in the private sector (other leg. deals with this)

• questions regarding patients of foreign languages remains undecided (but could use the same logic)

Section 7• court struggles with the openness of s. 7 language

Reference re ss. 193 and 195.1(1)(c) of the CC (1990)

• issue: whether the provs aimed against bawdy houses and prostitution infringe upon economic liberty• held: s. 7 doesn’t protect app’s rights to exercise that profession• Lamer looks to US jurisprudence, finding significant distinctions

• they protect property rights (we don’t)• they protect due process instead of fundamental justice


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• argues that s. 7 fails to protect economic liberty BUT Charter still purports to protect economic disadvantage• Wilson argues that economic interest IS protected

• protects right to choose a profession (where a doctor practices) but not right to work• this is a very slim distinction

• restricts interpretation of s. 7• it’s only a manifestation of ss. 8-14 and PFJs (not to be interpreted more generally)

• has subsequently been expanded• only deals with adjudicative rights• only looks at means not ends (moving away from substantive analysis)

• decision reflects continued reluctance to give gov. affirmative obligation

Gosselin v. Québec (2002)

• issue: whether Quebec’s Social Assistance Scheme violates s. 7• held: no violation since s. 7 is confined to adjudicative context• context: scheme slashed benefits to people < 30 to encourage them to work• reasons for failure

• it attacked the substantive rights, not process• insufficient evidence• asked for affirmative action

• leaves questions of positive obligations and going beyond adjudication open for later cases• recognizing +ve economic actions would create huge responsibility for government• McLachlin is hesitant to restrict herself to Lamer’s s. 7 limits from prior case

Chaoulli v. Quebec (A.G.) (2005)

• issue: whether prohibition of private health care insurance infringes on s. 7 rights• held: very narrow 3:3:1 split said that it does, breaking tie on Québec Charter• context: significant public disgruntlement over waiting lists; court trying to push government to act• expands scope of s. 7 beyond Reference and Gosselin• Deschamps (broke the tie)

• she is express in saying that her reasoning would not apply to the Canadian Charter• places on onus on gov. to disprove infringement

• we don’t know what plaintiff would have had to show (there’s no test)• leg. must be shown to infringe threaten security of person in some way• uses evidence to show that provs are arbitrary• note double-standard from RJR:

• court’s evidence for striking down provs is no stronger than evidence in support• decision is policy naive, failing to consider how health care really works• contrasted approach deference to legislature:


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• “if you have all the tools and their is haste requiring a decision, the court should decide.”• McLachlin and Major

• characterize right as freedom to use financial resources to circumvent public health care• analogous to property right

• they avoid issue of ‘fixed stock’ of doctors ∴ fail to consider those who can’t pay• flawed rationale:

• if provisions put any one in worse position, they should be struck down• BUT lacking evidence that this would improve anything

• claim that substantial anxiety may threaten security of person• expand s. 7 reach, citing Morgentaler and Rodriquez for support

• leave open whether s. 7 can protect beyond adjudicative context• Binnie and Lebel (dissent)

• argues for deference to Parliament• accepts s. 7 role expansion, but not to same extent as McLachlin and Major

• fear that courts will be less able to make evaluation when going beyond adjudicative context• create four requirements of PFJ:

• i) legal principle ii) matter of social consensus iii) fundamental to operation of legal system iv) of manageable standard

• PFJs don’t apply here because there’s no s. 7 infringement in the 1st place• tied with RJR as the most criticized SCC decision

• Webber feels that the minority decision will be most likely to be followed

Recognition of Aboriginal Treaty Rights• Aboriginal rights aren’t actually protected by the Charter• recognition of rights grew out of necessity more than anything

• settlers needed to make friends in order to create agricultural and economic progress• treaty process

• at outset, all authority was on imperially appointed officials (who wanted harmony in the colonies)• this had two results

• FG having jurisdiction over Aboriginal matters • fiduciary relationship btwn Crown (French and British) and First Nations

• officers of local colonies were too hostile (directly implicated in land conflicts)• common law of Aboriginal title

• arose parallel to treaty process• s. 35 was informed by these developments (title and rights)• early development was isolated to Eastern Canada (except for Douglas treaties in BC)

• lack of framework in Western Canada contributed to erosion of rights in West• Four Reversals of Rights Erosion in 60s and 70s


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1. reaction to White Paper (which denounced Ab. rights as legal interests)• stoked the fire

2. more Ab. rights cases come before courts3. Calder recognizes possibility of Aboriginal rights in BC4. negotiation of first modern treaty (James Bay)

• nevertheless, Delgamuukw fails to recognize Ab. title as property right• nowadays, resource companies recognize the importance of handling Ab. title claims in order to avoid sub-

sequent economic uncertainty in their affairs• cases below grapple w/ language of s. 35

R. v. Sparrow (1990)

• issue: whether fishing violation violated app’s s. 35 rights• held: no express leg. intent to extinguish right ∴ gets full constitutional protection• honour of the Crown is used to describe the fiduciary relationship described above

• it’s generalized to all dealings between gov. and Aboriginals• not limited by ss. 1 and 33 because it’s outside of official Charter

• asserts that Ab. rights should not be frozen in time (reconsidered in Van Der Peet)• interpretation of “existing”

• Crown argued it’s how they existed on the ground in 1982• SCC rejects this noting the patchwork quilt of regulations that would result• thus “existing” means unextinguished

• this may only be done by clear and plain language in leg.• s. 35 goes beyond acknowledgement of the right (i.e. implies protection)• 3 reqs for infringement of Ab. rights (à la Oakes)

1. valid objective (e.g. conservation or public safety)2. link between leg. and it’s objective3. compensation and consultation from gov.

• consultation reqs: timely delivery of info, responsiveness in bargaining, answering questions• these require

R. v. Van Der Peet (1996)

• held: right of app. to sell salmon not protected by s. 35• greater focus on content of s. 35 right

• precision of rights is emphasized (here: deals with exchange of fish for goods)• tries to reconcile it with sovereignty of the Crown• meant to protect traditions integral to First Nations (“of central significance”)

• significance of tradition is assessed at pre-contact• this invalidates all Métis rights• excludes practices around fur trade which evolved post-contact


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• traditions must be unique (this has been criticized)• application was problematic here: fish trading was not deemed sufficiently ‘central’

• however, it became so post-contact

Delgamuukw v. BC (1997)

• restricts Van Der Peet analysis to sub-class of Ab. rights

Sub-class of Ab. right Includes Moment of crystallisation

Aboriginal title • claim to land • time of sovereignty

freestanding Aboriginal right • claim to a practice • time of contact

• thus, the decision creates a bifurcation in Aboriginal law• codifies Sparrow principles into test

1. establish sufficient objective• creates non-exhaustive list of valid objectives

• the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims

2. show that it has been dealt w/ in manner consistent with honour of the Crown• in effect, these additions concurrently widen and narrow the s. 35 test

Recognition/Accommodation of Collectivities• existence of a minority community is built into structure of gov.

• NOTE: ‘collective rights’ doesn’t capture the concept, so don’t use it• a collective right is a vehicle through which an individual right can be recognized

• Canada is the most advanced in collectivity scholarship because of our circumstances

Mahe v. Alberta (1990)

• issue: whether Edmonton satisfied the demands of s. 23 (minority language education rights)• characterized as remedial prov. meant to remedy prior failure• Dickson stresses cultural importance of these schools (changes character of decision)• s. 23 requires BOTH instruction and facilities

• should be dealt with on sliding scale: more students = more protection (+ vice versa)• court creates framing norms

• instead of flushing out content to right, establishes broad range of ways to satisfy it•∴ remedy is mere authorization to act - no specific instruction how

• notice


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• in comparison to prior decisions, this deals w/ +ve action• comparison w/individual rights

• in Société des Acadiens, Beetz says these rights are no different than individual rights• THIS IS WRONG!• he said this to limit the rights as compromise

• minority language rights are an exception to general right of equality• unique role of French and English necessitates unique treatment• thus, there’s cultural validity in having these provisions but none for Mandarin (for example)• this approach is underpinned by fundamental equality interests

• accommodation of collectivities IS NOT at odds with individual rights• they operate on separate planes; former is entirely in institutional framework• some individuals will be adversely affected, yet this is largely contextual• Trudeau “It’s scandalous that workers in Québec should be required to use the English language on

the job.” (consider double standard here)

Postscript

• other collectivities, such as publicly funded denominational school boards, have been recognized• within federalism, consider the relationships between collectivities and larger communities

• this has been a recurring theme: i.e. division of powers• this is why the fiscal imbalance debate continues today

• some ask whether fundamental interests are, in fact, engaged• consider Société des Canadiens

• accused sought right to be tried in French, but got anglophone judge and translator• this is not enough

• thus, fundamental interests were clear there• consider Aboriginal self-government

• there are clear fundamental interests involved in ensuring your fate is guided by your descent and traditions

• individual liberty must always operate within constitutional framework• this framework must reflect the society it affects (that’s why we don’t use US Bill of Rights)


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constitutional spring outline - university of victoria...

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