ELEMENTS, SOURCES AND PERSPECTIVES
Connoly v. Woolrich- The validity of Cree law did not disappear because European settlers brought their own laws as well. Casimel v. Insurance
Corp. of British Columbia- Their custom was recognized by the court & was not superceded. The custom was used to interpret & apply the statue. R.
v. Sault Ste. Marie- made distinctions between true crimes & public welfare/regulatory offences based on the fundamental principle that morally
innocent persons should not be punished. Re Secession of Quebec (1998)- The court looked to underwritten legal principles at the foundation of the
constitution, namely: federalism, democracy, constitutionalism/rule of law & respect for minorities. Re Manitoba Language Rights - Rule of
law is an unwritten constitutional principle. Unwritten constitutional principles may carry enough weight to decide concrete cases in a way that is
different than if it was based on the written constitution alone. In other words, they may create “substantive legal obligations”. British Columbia v.
Imperial Tobacco Canada Ltd.(2005)- The written constitution is primary. Principles of unwritten law should not be used to strike down properly
JUDICIAL REVIEW AND CONSTITUTIONAL INTERPRETATION
Edwards v. AG Canada (1930)- The constitution is a “living tree capable of growing within its natural bounds”. The Motor Vehicle Case (1985)-
Section 7 is not limited only to procedural guarantees, but also allows the courts to review the content of laws. The meaning of s.7 could not be
frozen in time to mean what it did in 1982 & principles of fundamental justice would be identified over time.
THE APPLICATION OF THE CHARTER
RWDSU v. Dolphin Delivery Ltd. (1986)- Secondary picketing (against common law). In effect, s.32(1) of the Charter provides an exception or
limitation upon s.52(1) of the Constitution Act as it specifies the bodies to which the Charter applies (government & legislature). The Charter does
not apply to coercive courts orders when the matter is governed by the common law. Although in private matters, the Charter does not apply directly
to the common law, the courts should aim to bring the common law into keeping with Charter values.
Ramsden v. Peterborough - Person put up posters on public utility poles against by-law. The Charter applies to municipalities. Operational
Dismantle v. The Queen - Cabinet decisions as acts of the executive even when acting under common law (not statutory authority) are subject
to the Charter. At common law, the Crown has prerogative powers (exercise without agreement of parliament- includes foreign relations) although
these are very limited in this day & age. R. v. Swain- Crown raised insanity defence based on common law. Where a common law rule is invoked in a
dispute involving a governmental party, the Charter will apply. McKinney v. University of Guelph (1990)- Employees at a series of universities
applied for declarations that the compulsory retirement provisions (at age 65) violated s.15 equality rights under the Charter. The mere fact that
something is a creature of statute does not render it subject to the Charter (governments sometimes create statutory entities not to carry out
governmental activities, but to legally facilitating private relations & the Charter was not meant to cover these activities). Also, the court said that
serving a public purpose is not sufficient to make the Charter applicable (this approach is fraught with difficult & uncertainty & could open an
endless series of doors). Furthermore, public funding was not seen as enough to render a party governmental. Additionally, the court said that the
universities were not actually that closely regulated or implementing a specific government policy (essentially autonomous actors acting within an
environment controlled by government). Stoffman v. Vancouver General Hospital (1990)- retirement case (involving a hospital). The Charter does
not apply as the hospital was not governmental in itself or part of the governmental apparatus (funding & control not enough) & the activity in
question is not a specific government program (the activity is implementing a mandatory retirement policy, not the government function of providing
medical services). Douglas/Kwantlen Faculty Assoc. v. Douglas College (1990)- Community colleges with a mandatory retirement policy. The
colleges were part & parcel of government apparatus of delivering certain forms of postsecondary education to BC. The colleges were created by
statute & were agents of the Crown (can only exercise powers as such). The Minister of Education could issue direct orders (re: type of education) &
had to approve bylaws. Also, 80% of funding came from the government & the colleges had to submit a budget. These characteristics distinguished
this case from McKinney & Stoffman.
Entities performing a governmental function **not public function**
Godbout v. Longueuil (1997)- In employment contract, is specified that the employee must reside within the city. The dissent enumerated
characteristics of municipalities which demonstrate its inherently governmental nature: councils democratically elected, possess a general taxing
power (coercive), in power to make, administer & enforce laws in a defined territorial jurisdiction, exercise powers from provincial government (says
this is most importantly, odd due to past rulings discussing creatures of statute). Eldridge v. British Columbia (1997)- A hospital in British Columbia
failed to provide sign language interpretation in regards to medical services for the hearing impaired. Where a non-governmental party is performing
governmental activities (or implementing a specific government policy/program) those activities will be subject to the Charter. Slaight
Communications v. Davidson (1989)- Wrongful dismissal case. Statutory creatures derive all powers from statute (over which the Constitution is
supreme) & as such may in some contexts be subject to the Charter. Ambiguous legislation granting quasi-judicial discretion to statutory creatures
must be construed as not conferring power to violate the Charter. When legislation gives such powers explicitly the analysis shift to determining
whether the legislation is justified. Comments: If orders of courts aren’t Charter-bound in this situation (as per Dolphin Delivery), why would the
Charter apply to the order of the arbitrator? Courts & arbitrators have different sources of authority & arbitrators are implementing a specific public
policy whereas the courts may have a more neutral role. **The ratio in this case is debatable. Blencoe v. British Columbia (Human Rights
Commission) (2000)- A person was involved in proceedings with the Human Rights Commission regarding alleged sexual harassment. Where a body
is implementing a specific government, those actions related to implementing that policy are subject to the Charter.
Seneca College v. Bhaduria - Pre-Charter: A woman of Indian-descent taught for 7 years & held a degree in mathematics & an Ontario
teaching certificate. Seneca College placed advertisements about jobs in her area to which she applied on numerous occasions. The plaintiff always
got letter saying that they had received application, but she never got an interview. She alleged that Seneca College discriminated against her because
of her South Asian origin & further claimed that the college owed a duty to her not to discriminate against her on grounds of national or ethnic origin.
The OHRC existed & legislated against this type of discrimination in employment. The plaintiff went directly to court arguing that there was a tort of
racial discrimination in the context of employment. She argued that the OHRC embodied a general policy regarding racism in employment
recognized by our society & that this general policy was now reflected in the common law. RD: No tort of discrimination at common law. Pang v.
Star Choice TV Network  OJ No. 4169 (Ont. Court of Appeal)- Supreme Court of Canada has conclusively determined that there is no tort at
common law for discrimination in employment (as per Seneca College). Re Blainey and Ontario Hockey Association (1986)- OHA would not let her
play on a regular season hockey team & she made a complaint to the OHRC. OHRC did not have jurisdiction (s 19.2 said that it was permissible in
athletic activities to limit to same sex). She then went to court to argue that the Ontario Human Rights Code was contrary to the Charter. This
provision of the Code did violate equality rights under s.15 of the Charter & the section was struck down. Comments: Restricting the application of
the Code leaves the matter (whether gender discrimination is permitted) to be governed by the common law. Vriend v. Alberta (1998)- The Charter
can apply where legislation extends protection/benefits to certain groups but omits to extend it to other similarly situated groups.
The common law in private litigation
Hill v. Church of Scientology- Hill sued Manning/Church of Scientology for libel. D argued that the Charter applied here (government lawyer,
statements had been in government duty, libel suit funded by government). The court said suing in private capacity, not acting a governmental
capacity. The defendants also argued that the tort of libel should be modified to bring it into line with freedom of expression values expressed in the
Charter. In this context, the existing common law struck the appropriate balance between freedom of expression & need to protect integrity on the
other (if it involved reporting by media or political commentary involving government action, the court may have been willing to reformulate the tort
of defamation). RWDSU v. Pepsi-Cola Canada- union picketed their plant, but also retail outlets (tried to persuade them not to accept delivery) &
homes of management personnel. Changed rule re: secondary picketing. Common law rule could be modified in light of Charter principles & values
(court did have that power). Constitutionally enshrined values must be viewed as a guiding instrument in formulating Canadian common law.
JUSTIFICATION UNDER SECTION 1
R. v. Oakes (1986)- The reverse onus clause a violation of the Charter right to be presumed innocent expressed in s.11(d)? RD: Set out the Oakes
test for determining if Charter violations are justifiable unders.1. First the purpose of the limiting provision or action must be identified & deemed to
be both pressing & substantial enough to society to warrant a rights violation. Second, it is necessary to analyze the means chosen to achieve the
objective. The means must be logically connected to the goal & not arbitrary or irrational, must only impair the right in question as minimally as
possible & there must be proportionality between the effects of the infringing the right or freedom & the objective. Comments: Oakes test may place
too much emphasis on the objective. Perhaps, more emphasis should be placed up front to the effects. Oakes test takes the objective of the law as
being central to any test of its reasonableness. However, the objective of a law is somewhat speculative. Sometimes don’t the objective isn’t state or
when it is, this may not be complete or accurate statement. Also, the objective of the law is often multiple; may be a chain, immediate, intermediate
& ultimate objective. Do you run the Oakes test several times? What if one objective fails? The courts sometimes follows the Oakes test religiously,
sometimes does a free-form analysis of its rationality with little reference to the Oakes test. Oakes test is also presented as an algorithm that is
universally applicable (to every Charter right) despite significant differences between the sections. Some sections seem to already have a
reasonableness factor built in (ie. search & seizure section).In Oakes, the objective is to eliminate the social ills associated with drug trafficking. So
should look at whether there is a rational connection between the eliminating drug trafficking & the reverse onus (more effective prosecution & rate
of trafficking). However, they look at whether there is rational connection between possession & assumption of trafficking (internal rationality). R. v.
Big M Drug Mart - Big M was charged with operating on a Sunday contrary to the federal Lord Day Act. RD: The purpose of legislation
cannot shift/change over time (otherwise can just change purpose to have a law upheld). R. v. Butler, - Charged with selling & possessing
obscene material (defined as undue exploitation of sex or sex plus crime/violence). Challenged this provision of the Criminal Code on the basis that it
violated freedom of expression. RD: A certain shift of emphasis in the purpose of legislation is permissible despite the ruling in Big M (merely
applying the same standard in a certain context to allow for some leeway). ? (note: what type of evidence- scientific or common sense?) Comments:
Butler & Big M are two very different cases. The courts should not be setting down rules that apply across the board. The problem is expecting
consistency where there need not be. If looking at cases contextually, then there is not a problem. Dagenais v. Canadian Broadcasting Corp.,
-. The accused persons wanted an injunction on airing the series in Canada until after trial (thought it may create prejudice).RD: Amended the
proportionality stage of the Oakes test to include not just a comparison of the objective & means but also the salutary effects (actual achievement of
objective) & deleterious (harmful) effects.
Subsequent developments of the Oakes Test: Context & Deference
Edmonton Journal v. Alberta- Involved a piece of Alberta legislation that put very tight restrictions on the publication of information relating to
matrimonial proceedings before, during & after proceedings took place. It is sometimes important to consider the contextual meaning of rights &
legislative limits in analyzing their reasonableness. Approach represents a shift to another understanding regarding how the Oakes test should be
applied (from a universal approach to a more contextual approach). Irwin Toy Ltd. v. Quebec- Restrictions on advertising to children. Greater
deference to the legislature in its choice of means is appropriate in various circumstances including: whether the government is sought to balance
competing interests, allocate scarce resources, protect a vulnerable group or address unclear social science evidence regarding a social issue.
(**Comments: these are areas where the courts lack expertise & to substitute the opinion with that of politically accountable legislatures could be
seen as overstepping their bounds**). However, where the state is seen as the sole antagonist of an individual’s rights (as is usually the case for legal
rights), the courts has more experience & is more fit to judge the means. Thomson Newspapers Co. v. Canada- Involved a federal ban on publishing
voter opinion polls for a few days prior to the election. RD: There is not a lower standard of justification in some cases. But when using the
contextual approach, the dubious quality of an activity may mean that it is easily outweighed by the legislature’s objective. Comments: An important
contextual factor to consider then is the degree of constitutional protection that should be provided for an activity (how close or remote is it from the
actual value sought to be protected?). RJR Macdonald Inc. v. Canada- General ban on tobacco advertisement. the contextual approach does not mean
a complete deference to the legislature in how it deals with social problems (this would undermine the requirement to justify right violations). As
MacLachlin J. (concurring) state distinctions about the types of cases were deference seems more appropriate might be difficult to make (ie. in
criminal law still balancing between the accused & victim). RD: Context, deference & a realistic standard of proof are necessary to a section 1
analysis but should not be pushed so far as to relieve the state of provided reasoned justification for rights’ violations. R. v. Lucas (1998)- Pertained
to libel provisions of the Criminal Code. MacLachlin J. dissented stating the low value of an activity is not conclusive, that a rigorous analysis need
still be followed (it does not lower the bar of justification at the outset but should be considered during the proportionality assessment).
Newfoundland (Treasury Board) v. N.A.P.E (2004)- The Nova Scotia government was going to implement a pay equity agreement for female
healthcare workers but at the last minute fell into a budgetary crisis. Generally, financial considerations should not be a factor in whether rights are
respected. However, in exceptions circumstance such as those in this case, budgetary constraints may be a valid factor in the section 1 analysis.
Cusson v. Quan (2007) (Ont.C.A.)- Two Ottawa publications published stories stating that he had actually compromised rescue operations by
misrepresenting himself. Actions in defamation. RD: Reformulated common law of defamation in light of Charter values & created a new public
interest, responsible journalism defense (must show that reasonable steps were taken in the circumstances to ensure that the story was fair, the content
was true & accurate & that the story was in the public’s interest to hear). Comments: The approach of reformulating the common law is a promising
development as developing the common law is court’s expertise & it avoids a direct confrontation with legislature (as opposed to striking down
legislation as unconstitutional. The legislature can respond if they do not agree with the altered common law rules).
THE CONSTITUTIONAL OVERRIDE
Ford v. Quebec- Re: signs in French only (including commercial signs). Quebec passed omnibus legislation to shield it from provisions of the
Charter and regularly inserted a notwithstanding clause into new laws. S.33 procedure only requires that the sections #’s are mentioned, not the rights
in the words of the Charter.
FREEDOM OF EXPRESSION
R. v. Keegstra (1990)- hate speech case. Infringed but justified given the noble purpose and fulfilling other s.1 requirements. Irwin Toy Ltd. v.
Quebec (1989)- Ban on advertising to children. Set out test for s.2(b) claims. Does it convey a meaning? No violence. Then s.1 RJR MacDonald Inc.
v. Canada (1995)- tobacco ad ban struck. Demonstrates importance of free expression even in the face of noble goals. Canada (Attorney General) v.
JTI_Macdonald Corp., 2007 SCC 30 (background only)- look up!! Thomson Newspapers v. Canada (1998)- prohibition on publishing polls before
elections. Committee for the Commonwealth of Canada v. Canada (1999)- no pamphlets in airport unjustified infringement. Regarding expression in
public places. 3 views. Lamer (consider the compatibility with function of place during s.2(b) analysis. L’Heureux-Dube and MacLachlin (under s.1
stage—difference?) Montréal (City) v. 2952-1366 Québec Inc., - prohibition on amplified noise. Sets down guideline re: expression in public.
The onus on the claimant to demonstrate that the place is one where constitutional protection of free expression would be expected based on the fact
that expression in such a location would not be contrary to any of the purposes of s. 2 (b) (specifically, political or social discourse, self-fulfillment,
or pursuit of truth). In answering this question, the Court suggested that consideration should be given to the historical and/or actual function of the
place in question and whether other factors pertaining to the location seem to indicate that expression there would be contrary to the purposes or
values at the core of free expression. Baier v. Alberta, 2007 SCC 31- summarizes s.2(b) jurisprudence especially pertaining to positive right ( F of E
generally construed in terms of negative terms- govt not required to provide forum) Discusses Haig case (statutory platform idea- re: not allowed to
vote in the referendum). Dunmore an exception to this (requirements: 1) claims of underinclusion grounded in fundamental Charter freedoms rather
than access to a particular statutory regime 2) exclusion from statutory regime permits a substantial interference with the s. 2 right or that the purpose
of the exclusion was to impede such activity. Need not be impossible to exercise the freedom, but must seek more than particular forum for
exercising freedom 3) state must be accountable for the inability to exercise the fundamental freedrom, Does it orchestrate, encourage or sustain the
violation of freedom? (re-word these requirements if using on exam- almost the same as on handout)
Sample issues/answers: Does ____ infringe upon ___ freedom of expression rights guaranteed by s. 2(b) of the Charter of Rights and Freedoms?
Does __ constitute expressive activity by conveying or attempting to convey meaning, such that they prima facie fall within the realm of s. 2(b)’s
protection? (Irwin). Does the form or location of expression preclude the activities of ___ from gaining the protection of s. 2(b)? (Irwin, Keegstra,
Montreal, Committee for Commonwealth of Canada v. Canada, Lehman v. City of Shaker Heights). Does ____ have as its purpose of limiting free
expression or are they aimed merely at preventing the physical consequences of the expressive activity? (Irwin). Does ____ have the effect of
limiting free expression even if they are intended solely to prevent the physical consequences of the expressive activity? (Irwin). If the intent of ___
has only the effect of limiting free expression, and not the purpose of doing so, are ____ connected with one of the purposes of the protection of free
speech (namely, involvement in political or social life, self-fulfillment or the pursuit of truth)? (Irwin).
LIFE, LIBERTY AND SECURITY OF PERSON (s.7- not free standing right. Justification step built in 2nd part re: the parameters of the right.
Rarely will succeed under s.1) Re Section 94(2) of the Motor Vehicle Act (BC) (1985)- deprived of liberty when prison term (here not in accordance
w/ fundamental justice because can’t defend oneself really- no mens rea requirement). Fundamental principles of justice does not just mean
procedural justice. Principles are: legal in nature, wide public consensus on them and yield predictable results. R. v. Nova Scotia Pharmaceutical
Society (1992) pp. 751-56- argued that a law was too vague (Combine Act- re: competition). Principle of fundamental justice is that a law not be too
vague that any decision to prosecute will mean a conviction because a person cannot defend themselves. Seeking to give substantive notice to people
(create an “area of risk”) and limit discretionary power. Can look at issue in s.7 stage or s.1 stage (law or minimal impairment). Gosselin v. Quebec
(Attorney General) (2002)- welfare distinction, not provided essential needs. “The primary reason for McLachlin's finding that there was no violation
was because Gosselin was unable to discharge her burden of proof. “[Ms. Gosselin had] not demonstrated that the government treated her as less
worthy than older welfare recipients simply because it conditioned increased welfare payments on her participation in programs designed specifically
to integrate her into the workforce and to promote her long-term self sufficiency…The question therefore is not whether section 7 has ever been —or
will ever be— recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of section
7 as the basis for a positive state obligation to guarantee adequate living standards….I conclude that they do not. ... I do not believe that there is
sufficient evidence in this case to support the proposed interpretation of section 7. I leave open the possibility that a positive obligation to sustain life,
liberty, or security of the person may be made out in special circumstances. However, this is not such a case. The impugned program contained
compensatory “workfare” provisions, and the evidence of actual hardship is wanting. The frail platform provided by the facts of this case cannot
support the weight of a positive state obligation of citizen support."” Godbout v. Longueuil (City) - s.7 concerns “irreducible sphere of
personal autonomy wherein individuals may make inherently private choices free from state interference”. **individual autonomy** Meaning of
fundamental justice depends on nature of the right asserted and the character of the alleged violation. Involves a balancing of state and individual
interests (it is in itself that a POFJ that individual rights may sometimes be violated in pursuit of an overriding collective objective). S.7 violations
will be rarely justified under s.1 (may not be necessary to strictly apply all stages of the s.1 test as the issues can be incorporated with s.7 analysis).
Chaoulli v. Quebec (Attorney General) (2005)- ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private
medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and Freedoms. In a 4 to 3 decision, the Court found
the Acts violated Quebeckers' rights to life and security of person under the Quebec Charter; as such the ruling is only binding in Quebec. Three of
the seven judges also found that the laws violated section seven of the Canadian Charter of Rights and Freedoms (Deschamps- delay in medical
services a violation of security of person- see Morgentaler; MacLachlin and Major- "Charter does not confer a freestanding constitutional right to
health care. However, where the government puts in place a scheme to provide health care, that scheme must comply with the Charter."). Charkaoui
v. Canada (Citizenship and Immigration), 2007- constitutionality of procedures for determining the reasonableness of a security certificate and for
reviewing detention under a certificate. The Court held that the security certificate process, which prohibited the named individual from examining
evidence used to issue the certificate, violated the right to liberty and habeas corpus under section 7 (procedural fairness). “What is constitutionally
required from a procedural standpoint may vary from one context to another, depending on the individual and state interests that are implicated. The
Court also pointed out something that has too often been forgotten by many Western Democracies in the post-911 world. Simply because the state’s
interest happens to be national security does not mean that long established principles of fair process should automatically be suspended”- thecourt.ca
Andrews v. Law Society of British Columbia (1989)- non-citizen can’t practice law (struck down). Adopted the enumerated or analogous grounds
test: must be a distinction based on a prohibited ground that is discriminatory (in that it creates an unequal distribution of benefits or burdens).
Analogous grounds can be judged by whether the group is “discrete and insular minority” (relative lack of political/social power) or is based on an
essentially immutable personal characteristic. Debate here whether the Oakes test should be applied in full force (majority) or just require sound and
reasonable objective/measures (McIntyre/Lamer). Dissent argued this was required because of the broad scope of equality rights whereas the
majority noted that all distinctions would not be classified as infringements. The majority also stressed that s.15 is supposed to protect society’s most
disadvantaged so an onerous standard is needed. **Case also recognized that similar treatment could perpetuate inequality (facially neutral laws may
be discriminatory in impact- “adverse effects discrimination”)** Citizenship is an analogous ground.
Re Workers’ Compensation Act (1989)- NFLD, no tort allowed for workplace injuries. Differentiation based on employment status was not an
analogous ground because it was not permanent or personal. R. v. Turpin (1989) – accused murderers can’t be tried by a judge alone except in
Alberta (claim rejected). Must consider the social, legal and political context of the claim and the interests s.15 is designed to protect. Left the door
open about whether province of residence could in some cases be an appropriate ground. R. v. Hess and Nguyen (1990)- statutory rape provision
(male accused/female victims). Struck down under s.7, regarding s.15- Wilson in dissent discussed biological realities (criticized for this).
MacLachlin said it did violate (don’t need to be part of a disadvantaged group- burdened men in a way that it did not burden women). Weatherall v.
Canada (1993)- female/male guards and prisoners. The law adequately considered the historical circumstances between the parties and so the
distinction was appropriate. Eldridge v. British Columbia (1997)- No sign language interpreters at the hospital- essential to gaining same benefit as
hearing population. Adverse effects discrimination. Vriend v. Alberta (1998)- sexual orientation an analogous ground. Successful adverse effects
claim. Analogous- immutable or only changeable at great personal expense. (perhaps in another case- state has no interest in you changing
characteristic to gain benefit).
The Law test
Law v. Canada (1999)- too young to get CPP survivor’s pension. New unified approach to s.15 claims (after dispute during 1995 trilogy). Adds a
requirement that the discrimination go to the core of the purpose of s.15 (must degrade person’s human dignity- assessed on a modified objective
standard). Stresses need for context. Some factors to consider in determining whether it impacts human dignity- history of disadvantage, ameliorative
effects of more disadvantaged parties, accommodating group needs and nature and scope of the interest affected. Corbière v. Canada (1999) pp.
1197-1203- right for off-reserve band members to vote in band elections. Aboriginal residence status an analogous grounds (not residence generally-
not so much of an deep personal characterstic). 2 judgments- majority (once an analogous category, always so) and concurring judgment (depends on
context). M. v. H. (1999)- sex orientation was a analogous ground. Decided on the 4th step that people who are in same sex relationship are in a
position of vulnerability to prejudice. The denial of rights to same sex couples goes to the central rights in dignity. Oakes Minimal impairment:
inter-dependant relationship involving financial interdependency breaks down. Alleviate the burden on the public purse by shifting the damages.
Government was a singular antagonist and it was held that there was a reasonable basis of this stage in the case of precluding the rights.British
Columbia v. BCGSEU (1999) pp. 1189, 1192- Lavoie v. Canada (2002)- preferential treatment to citizens at a certain stage in hiring for federal
public service jobs (upheld 6-3). 4 judges in the majority justified under s.1 whereas the other 2 said no discrimination (under the Law test) and
criticized the majority’s weakening of the s.1 test (depriving the equality guarantee of meaning). The dissent also agreed about the onerous
application of the Oakes test. Gosselin v. Quebec (Attorney General) (2002)- age discrimination in welfare. McLachlin rejected the claim that the
purpose "did not correspond the to actual needs and circumstances of the individuals" and that it effectly stereotyped youth. Rather it was "an
affirmation of their potential". The majority found that youth do not suffer from any pre-existing disadvantage nor were they more susceptible to
negative preconceptions. McLachlin found that there was not enough evidence of harmful effects of the law. Rather the claimants were merely
representative of some individuals who had "fallen through the cracks". Hodge v. Canada (2004)- former common law spouse not entitled to CPP
survivor’s pension. Discusses comparator groups (here former married persons, not married persons, and this correct group is not entitled either).
Each stage of the s.15 analysis proceeds by comparison. Start by considering the claimant’s view of the comparator group, not bound by this though
if it is an erroneous association. Appropriate group must mirror the characteristics relevant to the benefit/burden except that a personal characteristic
is distinguished or omitted in a way that offends the Charter. **universe of people potentially entitled to equal treatment in relation to the subject
matter of the claim** Look at purpose and effects, trying to achieve substantive not formal equality. Auton v. British Columbia- Autism case
(disability). Whether Province’s refusal to fund treatment violates s. 7 of Canadian Charter of Rights and Freedoms. Found that it did not (not bound
to fund all experimental treatments- if medically necessary [core vs. non-core] maybe different result)
Legal Issues: 1. Does the law impose differential treatment between the claimant and other people in purpose or effect? 2. Are one or more
enumerated or analogous grounds of discrimination the basis for the differential treatment? 3. Does the differential treatment in purpose or effect
discriminate in a substantive sense, thereby violating the individual’s essential human dignity and freedom through imposing a disadvantage,
stereotype or political or social prejudice
ABORIGINAL AND TREATY RIGHTS
Royal Proclamation 1763: Magna Carta of aboriginal rights. s.35: 1982 provisions for aboriginal rights were embodied in the charter of rights and
freedoms. They are not subject to s.33 and not subject to s.1. Sparrow held that not rights are absolute. Problems is in (1) recognized and affirmed;
(2) nature of treaty rights and (3) existing. Aboriginal Treaty rights: A large body of agreements concluded between the aboriginal people and the
crown under both French and British rule.
(1) Historic Approach: Shows aboriginal rights in a pure and unsullied form unaffected by European contact.. (+) rights will be identified in a
form that does not show the incursions of diminutation, which follow from European contact and rule. (-) aboriginal rights are often recognized in a
form that does not take account of evolution. (2) Living Tree: Your heritage is what you brought forward from the past to the present. Aboriginal
rights are to be identified if reference to basic features of aboriginal society. (+) Deals with aboriginal rights in a contemporary form. (3) Human
Rights: Aboriginal rights are in fact versions of universal human rights. These would be called collective human rights. (+) Inuit people have
advanced this approach saying that their rights are human rights.
Guerin v. The Queen (1984) (1) coined sui generis nature of aboriginal title as personal in the sense that if cannot be transferred to a grantee,
fiduciary obligation on the part of the crown, nature of aboriginal interest is described as inalienability. (2)SCC ruled against the government holding
it legally liable in damages for what it did with the lands after surrender b/c fiduciary duty. R v. Sparrow (1) Existing:=unextinguished; s.35 could
not revive rights. However, there was a very high standard governing extinguishments: a regulation would not de facto extinguish a right – rather, the
sovereign’s intention must be clear and plain if it is to extinguish an Aboriginal right (Calder).the rights to which s.35 applies are those that were in
existence when the constitution Act, 1982 came into effect. There is no “freezing of rights.”=allowed to evolve over time and are in contemporary
form. Rights are not revived by section 31.(2) The sovereigns intention must be clear and plain to extinguish the Indian aboriginal right to fish.
(3) Recognized and Affirmed: Rights under s.35 are not frozen as they appear in 1982. Even though a right survives in a minimal form and gets
into s.35, it could be used as a basis to challenge existing regulation.(4) Fiduciary Duty: The government has the responsibility in acting in a
fiduciary capacity with respect to the aboriginal peoples. Trust like relationship.(Guerin) (5) Justification Test: (1) Is the there a prima facia
infringement on aboriginal rights (burden is on aboriginal)? 2) Is the infringement justified? A) The legislation that is effecting the aboriginal right
must have a valid and pressing objective (b) Do the means chosen uphold the honor of the fiduciary relationship between the crown and aboriginals?
(Requirement: they should have first priority after conservation interests); 3) Has there been as little infringement as possible? [has there been
compensation, were they consulted, this must be decided on a case by case basis](6) Decision: Holding in the case—a new trial was ordered because
the evidence regarding the length of the nets was not sufficient. The trial never took place.
R. v. Vanderpeet (1996) In order to be an Aboriginal right, a right must be an element of a practice, tradition or custom integral to the distinctive
culture of the Aboriginal group in question. [2.] To be integral, the custom, practice, or tradition must be a significant, and not incidental, to the
aboriginal culture (incorporated from Sparrow).[3.] The custom, practice or tradition must have existed prior to European contact. This is rooted in
the historical approach, although the exact date is not mentioned.[4.] There must be continuity in the custom, practice or tradition since contact,
although there need not be an unbroken chain. This is from the living heritage approach; allows for the evolution of customs, practices and traditions
such that the right may be recognized in modern form (rights are not frozen as per Sparrow).
Integral and distinct: integral is central and significant. Distinctive=it is a claim that this tradition or custom makes the culture what it is(3)rights
limited to inherent needs of the aboriginal tribe; conservation placed above needs to tribe (4)Evidence: said that the court should approach this and
interpret the existing evidence in a manner that is conscious of the special nature of aboriginal claims… for example there may be no written record
or the practices, customs R. v. Gladstone (1996)- (1) They referred to documentary journals of traders who noted the Hilsook people as trading with
their large canoes. a) internally limited right(notion of priority in Sparrow): Where the resource has finite limits (internal limitation), the
Aboriginal group should have priority for its use; once their need is satisfied, the rest of the society should have access to the resource. Sparrow-
ceremonial and fishing purposes. b) non-internally limited right: However, where the resource is infinite, the doctrine of priority does not require
that the government allocate the resource such that Aboriginal groups are given exclusive rights. Instead, the government must demonstrate that it has
taken account the existence of Aboriginal rights and allocated the resource in manner that gives priority over non-Aboriginal users. Gladstone-have a
cut of the pie such as i.e.) commercial licenses; dependant on the market (4) this uses the oakes test R. v. Powlet (2003) (1)DETERMINING the
RIGHT: Analogize to Van der Peet the test to Metis practices should focus on: “identifying those practices, customs, and traditions that are
integral to the Metis community’s distinctive existence and relationship to the land”. (2) Benchmark is effective European control which is 1850 in
Sue St. Marie—this is when Metis came about. (3) Community Membership for Metis test: (a) self identification-should not be of recent vintage
but need not be static or monolitithic; (b) Ancestral connection-Most problematic want a real link to the historic community whose practices ground
in the right being claimed. No requirement by blood but requires proof to the ancestors by birth, adoption or by other means. Marriage or perhaps
long term residency. (c) Community acceptance: past and ongoing participation in shared culture, customs and traditions that constitute a Metis
communities identity distinguished from other groups. Commercial Rights: Controversy is that the Metis could claim commercial rights while the
group in which they came from cannot because the bench mark date of Metis is after the fur trade. Thus, ironically Metis in effect have even greater
blood because of their European ancestry. R. v. Sappier; R. v. Gray, 2006 SCC 54-
Calder v. AG (73/SCR) -----This court recognized that aboriginal title as a legal right derived from the Indians’ historic occupation and possession of
their tribal lands…this is why this decision went beyond St. Catherine’s. Unless definite steps were taken to extinguish the title there would still be
title. Title not extinguished, because in order to extinguish there must be clear language. Delgammuuk v. British Columbia (1997) Test: (1) land
must have been occupied prior to sovereignty-only requires significant connection to the land, not occupation distinctive to culture. Idea that
aboriginal title crystallized when sovereignty was asserted. (2)Continuity between the prior date of crown sovereignty and the present—nature can
have changed and chain can be unbroken (3) At the time of soverignity, the occupation of the land must have been exclusive; however joint title can
also be recognized. CL principle derived from the notion of fee simple. If the group fails this can get site-specific. Sui Generis: (1) held
communally (2) source of title (3) inalienability-fiduciary duty. Fiduciary duty might be suggested to be in someway the duty to consult—no
consultation might show that there has been an infringement. Justification in Sparrow and Gladstone: (1) Crowns fiduciary duty that the
aboriginal peoples have priority. (2) Gladstone-both that the process by which it allocated the resource and the actual allocation of the resource which
results from the process reflect the prior interest of the aboriginal people i.e.) license to forestry, mining, fee simples in agriculture. [inter-chanagble
with land title]. Content of Aboriginal title: 1) exclusive use and occupation to the land 2) chose what use to put the land to 3) inherent limit-cannot
destroy the ability to the land to sustain future generations of aboriginal peoples 4) economic component.