McIntyre 3 by wuyunyi

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									Constitutional Summary

Constitutional Review

Broad Charter Test:

     (1) Does the Charter apply (s 32)? If no, end of the claim. If yes, go to 2
     (2) Is a Charter right infringed (2(b), 7, 15(1))? If no, end of claim, If yes, go to 3
     (3) Is the infringement a reasonable limit per s 1?
             a. If yes  Law is not unconstitutional
             b. If no  Go to 4
     (4) What is the appropriate remedy?

JUDICIAL REVIEW............................................................................................................ 2
    Vriend [1998] ............................................................................................................. 3
    Person’s Case [1929] ................................................................................................. 3
Purposive Interpretation ..................................................................................................... 3
  Aids to Interpretation ................................................................................................... 3
    Hunter v Southam [1984] ......................................................................................... 4
    R v Big M Drug Mart [1985] (freedom of religion case) ......................................... 4
SECTION 32 – DOES THE CHARTER APPLY? ............................................................... 4
  Btw 2 private actors? .................................................................................................... 4
    Dolphin Delivery ....................................................................................................... 4
  In mandatory retirement? ............................................................................................ 5
    McKinney v Univ of Guelph [1990] ......................................................................... 5
    Harrison [1990] ......................................................................................................... 5
    Stoffman v Vancouver Hospital [1990] ................................................................... 5
    Douglas Faculty v Douglas College [1990] .............................................................. 5
  What is government? .................................................................................................... 5
    Slaight Communications Case [1989] – Adjudicators + Discretion ....................... 5
    Lavigne Case – Regents/Govt Appointees ................................................................ 6
    Eldridge Case - Hospitals.......................................................................................... 6
  Government inaction? .................................................................................................. 6
    Schachter ................................................................................................................... 6
    Vriend [1998] ............................................................................................................. 6
  Does it apply to tort law? Defamation?...................................................................... 7
    Hill v Church of Scientology .................................................................................... 7
SECTION 2(b)..................................................................................................................... 7
  Accounts of Freedom of Expression ............................................................................... 7
  Test .................................................................................................................................. 7
  Commercial ..................................................................................................................... 8
    Irwin Toy [1989]........................................................................................................ 8
    RJR ............................................................................................................................. 8
  Hate ................................................................................................................................. 9
    Keegstra [1990].......................................................................................................... 9
    Ross v N.B. School District [1996] ........................................................................... 9
  Sexual Obscenity ............................................................................................................. 9
    Butler [1992] ............................................................................................................ 10
    Little Sisters ............................................................................................................. 10
    Sharpe ...................................................................................................................... 10
SECTION 7 ....................................................................................................................... 11
  Test ................................................................................................................................ 11
  What violates P of FJ? ................................................................................................ 11
  Criminal Context:.......................................................................................................... 11
    Nova Scotia Pharmaceuticals ................................................................................. 11
    Morgentaler ............................................................................................................. 12
    Rodriguez [1993] ..................................................................................................... 12
  Non – Criminal Context:............................................................................................... 13
    BR (Jehovah’s Witness and Medical Intervention) [1995] ................................. 13
    Motor Vehicle Reference ........................................................................................ 13
    G(J) [1999] ............................................................................................................... 13
    Gosselin .................................................................................................................... 14
SECTION 15 ..................................................................................................................... 14
  Two Types of Discrimination Claims ........................................................................ 15
    Eldridge (Distinction btw formal + substantive equality) ....................................... 15
    Vriend....................................................................................................................... 15
    Corbiere ................................................................................................................... 16
    Andrews ................................................................................................................... 16
    Law ........................................................................................................................... 16
    M v H ........................................................................................................................ 16
  Four Analogous Grounds Identified by SCC ........................................................... 17
  How to make out an analogous ground: ................................................................... 17
  Distinction Rule which emerges from Law ............................................................... 17
SECTION ONE ................................................................................................................. 18
    Therrens [1985] ....................................................................................................... 18
  Prescribed By Law – give notice to whom the law applies ........................................ 18
    Osbourne v Canada [1991] ..................................................................................... 18
    NS Pharmaceuticals ................................................................................................ 19
  Oakes Test ............................................................................................................... 19
    Irwin Toy ................................................................................................................. 19
    Thomson Newspapers ............................................................................................. 19
    RJR MacDonald ...................................................................................................... 20
    M v H ........................................................................................................................ 20
REMEDIES ....................................................................................................................... 20
    Schachter ................................................................................................................. 20
    M v H ........................................................................................................................ 21
    Vriend....................................................................................................................... 21


JUDICIAL REVIEW
Pros of Judicial Interpretation               Cons of Judicial Interpretation
    Complex issues better served by              Composed of elite/regressive
        depth of investigation by courts          Electorate over elite
    Principled responses to offset               Diminishes legislative
        legislative compromise/elite interest        accountability
    Fosters dialogue btw judiciary and           Access to courts limited to elites –
        the legislature                              legislature is more accessible
    Dialogue thesis - judges can be              Naturally unrepresentative –
        more rigorous than the legislators           diminishes accountability
        who debate and compromise                 Complex issues better served by
    Legislature deliberately leave                  broader discussion
        decisions vague – judges can              Petter – govt is restricted, not
        specify                                      private corporations – instead these
    Judiciary was granted this power                corps receive a tool to restrict govt
                                                     (imbalanced distribution of wealth)


Vriend [1998]
    Found a violation of s 15
    Case recognized the impt of judicial review AND constitutional supremacy - The
      courts are to be trustees of rights – provide remedies
    Iacobucci – pro-judicial review  protection of minorities
          o Parliament has forced courts into this position
          o Look to human rights – a province cannot knowingly discriminate – if take
              a legislative action to enhance the rights of citizens – must apply broadly
              to all

Person’s Case [1929]
    Fundamental rights are meant to be given a large and general interpretation
    Purposive  to guarantee values and principles which underlie democracies like
      ours
          o Charter as a whole AND the guarantee section

Purposive Interpretation

Aids to Interpretation
    Interpretive Provisions in the Charter
           o Several provisions within Charter which do not entrench a certain right but
              instead affirm certain values that are to be taken into account when
              interpreting the entrenched rights and assessing the justification of limits
              under s. 1
                   s. 25 + 27 + 28
    Parliamentary and Committee Debates
           o Of limited impt based on relevance of debate – how current is it?
    Canadian Pre-Charter Jurisprudence – ie - CBR
    International Sources – ie – some have limited influence
Hunter v Southam [1984]
   Search of newspapers office – Combines Investigation Act
   Must specify the purpose underlying the right
   Interpretation of the word ‘reasonable’ – look to s 8 – Charter must be held as an
      active/purposive document
          o Reasonability MUST be a consideration in authorizing a search and
              seizure, not only the rationality in furthering some valid government
              objective
   Capable of growth/development  Constitution as adaptable
   Do not follow US jurisprudence

R v Big M Drug Mart [1985] (freedom of religion case)
    Furthers the notion that the Charter is purposive in nature  analyze the purpose
       of the guarantees within the Charter
           o They are determined in light of the interests they were meant to protect
    Judicial interpretation of these rights SHOULD be generous, aimed at fulfilling
       the purpose of these guarantees



SECTION 32 – DOES THE CHARTER APPLY?

   (1) This Charter applies
         a. To the Parliament and govt of Canada in respect of all matters
             within the authority of Parliament including all matters relating
             to the Yukon Territory and Northwest Territories; AND
         b. To the legislature and govt of each province in respect of all
             matters within the authority of the legislature of each province.

Btw 2 private actors?

Dolphin Delivery
    Tort action btw 2 priv parties  Union argues a court injunction on picketing of
      3rd party is an infringement on 2(b)
    Findings
          o Peaceful picketing IS protected – not present here THEREFORE
              injunction was a reasonable limit
          o Charter does not apply to a case btw 2 private actors (Dolphin)
          o Charter does apply
                    To 1 priv and 1 govt actor (Lavigne)
                    When govt relies on CL  CL is subject to Charter
                    Priv actor relying on govt policy/programs
                    All levels/branches of govt (Dolphin)
      Criticism – leaving powerful actors unchecked (diff to secure absolute rights)
           o Possibility of prov variation
           o Judiciary should not be exempt

In mandatory retirement?

McKinney v Univ of Guelph [1990]
   Retirement case – univ outside govt in this case
   Created by state (creature of the state), direct (partial) funding, performing public
     functions  is NOT enough
   Univ maintains autonomy (academic freedom impt)  esp. re: employment
   MUST be an apparatus of govt (a direct actor or implementing direct policy)
   Ont Human Rights Code  s 11 infringes (age limit of 65) – does not affect
     outcome
   MINORITY
         o Control test – exercising funding control over entity
         o Govt function test – whether entity performs traditional govt function
         o Statutory authority and public interest test – whether the entity is one that
            acts pursuant to stat authority specifically granted to it to enable it to
            further an objective that govt seeks to promote in pub interest

Harrison [1990]
   Challenge to mandatory retirement – majority followed McKinney

Stoffman v Vancouver Hospital [1990]
    Not govt actors (use McKinney)  Hospitals as private
    Routine control of hospitals out of govt hands
    Govt appointed – clearer link to govt control

Douglas Faculty v Douglas College [1990]
   Statutory control  colleges as govt agencies (ministerial approval)
   Apparatus of govt – performing govt acts
   Diff with McKinney? The degree of govt control!

What is government?

Slaight Communications Case [1989] – Adjudicators + Discretion
     Former radio stations employee and letter of reference  statutory power of
       adjudicator re: wrongful dismissal – order letter of ref – station claims 2(b)
     Adjudicator is a creature of statute (Charter applies)  must exercise discretion
       consistent with Charter (Roncarelli)
     Slaight  an independent board DELEGATED under Canada Labour Code to
       order a remedy (nothing more was said about the remedy)
           o The remedy issued violated s 2(b)
     Charter applies to the exercise of power, not the clause which grants the power
     A delegated board cannot implement a statutory right unconstitutionally
          o Delegated power must be exercised compatibly with the Constitution
      Scrutinizing conduct of the actors in this case – not questioning their legitimacy

Lavigne Case – Regents/Govt Appointees
    Union (dues collected whether member or non-member) and Regents have
      collective bargaining agreement
    Lavigne (non-member) challenges union expenditures – claims 2(b) violation
    Regents found to be a govt actor (entered into an agreement with private actor)

Eldridge Case - Hospitals
    Deaf PL – diff treatment – desire sign lang funding – Hospitals operating under
      Hosp Ins Act (statute – no mention of sign)
          o Powers under the HIA infringed rights
    Finding  A non-govt actor performing govt functions are subject to the Charter
      vis-à-vis those functions
          o Hosp is administering a govt program
    NOTE  La Forest emphasizes that this is an exception ONLY as they are
      delivering govt services
    NOTE  Impt of the delegated power
    Reconciling Eldridge with Dolphin + Stoffman:
          o In certain circumstances Charter WILL apply to priv actor ((1) sufficient
              govt control over entity, (2) delivering a govt program on behalf of govt)
    The exercising of discretion in a discriminatory manner  use Slaight
    Discretion must not be exercised in an unconstitutional manner (Eldridge)

Government inaction?

Schachter
    Facts -
    Can govt concedes s 15, s 1 breaches  do make remedy argument
    Under inclusive legislation (re: addressing maternity, adoptive parents but not
      paternity leave)  No s 32 arg
          o Wrongful exclusion
Vriend [1998]
    Facts – Deliberate non-inclusion (calculated silence) of homosexuals in Alb
      Human Rights Leg
          o Vriend needs remedy for being fired
    Alberta govt  Charter does NOT apply to silence – fought inclusion of excluded
          o Clear – implementation of a statue (applying to the provincial govt)
    Court refuses  defer to govt on s 1 IF AT ALL – balancing
          o SCC determined that Alb govt has taken leg action – must be inclusive
          o Recognized group in need of protection
          o May not extend benefits in a discriminatory manner (Opposed to
              McKinney)
      Inaction on the part of a jurisdictional govt, where a positive obligation to fulfill a
       Charter right or freedom is present, will be considered as equal a violation of the
       Charter as an infringing action on the part of govt

Does it apply to tort law? Defamation?

Hill v Church of Scientology
     Facts – Hill (Prosecutor) charged with misrepresenting facts by Church (this
        proven false) – charges defamation – Church claims 2(b) – Hill wins
     SCC  Balancing btw 2(b) and tort law of defamation (cannot slur reputation by
        lies)
     Charter and CL  Onus on person alleging that CL is inconsistent with Charter
            o Most a priv litigant can do is argue that the CL is inconsistent with
               Charter values




SECTION 2(b)

Freedom of thought, belief, opinion and expression, including freedom of the
press and other media of communication

      Democratic rationale – market place for ideas (tested, debated, exposed)
      Truth rationale – improve quality of info available
      Self-fulfillment rationale – intrinsic  self expression/fulfillment

Accounts of Freedom of Expression
    (1) Instrumental (process oriented) – instrumental to the realization of social good
    (2) Intrinsic – permits free and rational beings to express their ideas and feelings

Accept that the court has recognized three underlying purposes to 2(b) – only need
to hit one:
     (1) Seeking and attaining truth
     (2) Participating in social and political decision-making (citizenship)
     (3) Cultivate diversity in self-fulfillment

Test
      (1) Is the affected expression within the scope of what 2(b) was designed to
       protect? (Exception – violence)
      (2)
           o (a) Is the govt purpose to restrict the conveyance of meaning? (2(b) not
               engaged unless the PURPOSE of govt is to restrict expression)
           o (b) Is the EFFECT to restrict expression serving one or more of the three
               underlying purposes referred to above?
What is not covered by s 2(b)?
   Anything that conveys a meaning – exception  a violent act

What is covered by s 2(b)?
   Leaf – Letting (K-Mart)
   Commercial Speech (Ford, Irwin Toy, RJR)
          o There is some conflicting view
   Hate Propaganda (Keegstra)
   Sexual/obscenity (Butler, Sharpe) – esp. child OR pornography generally
   Political (Thomson)

Commercial

Irwin Toy [1989]
    Facts – legislation prohibiting advertising directed at children under 13 – Criteria
        nature and purpose of goods, manner of the advertising, time and place - s 7
       challenge – SCC agrees there was a s 2(b) infringement – justified under s 1
    Distinguishes btw laws that have as their purpose the control or restriction of
       expression (will NOT pass s 1) and laws that merely have the effect of restricting
       expression (can be saved)
    When a court decides that a certain kind of expression has only a marginal
       connection to the values underlying 2(b), it applies some or all of the s 1 steps in
       a more flexible way
    Section 1 justification:
          o Govt drew on best evidence available to pursue acceptable objective
          o Mediating competing claims – line drawing
          o No evidence the deleterious effects are so severe as to outweigh objective
    DISSENT
          o Can the risk be shown? Evidence incapable of distinguishing fact from
              fiction – 2(b) too impt to be restricted

RJR
      Tobacco companies required a warning on product – infringement of 2(b)
       challenge – SCC found infringement – (Slaight, Irwin)
      TOTAL BAN ISSUE
      Rules:
           o McLachlin  Govt must meet its onus even when deference is present
                   GOVT HAS BURDEN OF PROOF STILL
           o When something is not capable of sci proof, that does not mean that the
               govt loses its burden – rely on common sense (no study to link advertising
               and smoking habits, but why would RJR spend so much?) – casual
               connection
      Fail on Minimal impairment  s 1 is a flexible framework (RJR)
      Rational basis is not enough  must prove on balance of probabilities
      Started with Irwin and crystallized with RJR = Four Contextual factors that
       dictate courts should defer to the legislature at the s 1 (minimal impairment
       usually)
           o (1) Balancing competing claims
           o (2) Where the sci evidence is inconclusive (this present in almost every)
                   Causal proof that A causes harm B
           o (3) Where the objective identified is to protect/ameliorate the position of
              vulnerable people (the TV-viewing kids in Irwin Toy)
           o (4) Where the govt is distributing money (public funding) – do not want to
              impose budgetary constraints on govt

Hate

Keegstra [1990]
    Facts – based on factual evidence  teacher in Alberta preaching anti-Semitic
      views to students – DF challenges s 319 of CCC
    Two basic positions:
          o American jurisprudence is more civil libertarian (Courts err on side of
             expression) – distinguishes from American in this case!
          o Can weighs other Charter values against expression – Can balances with
             equality
    Dickson CJC – Low Value Speech – able to differentiate value of speech
          o The objective itself is as high as it could get by promoting two Charter
             rights in s 7 and s 15 (importance elevated)
                  Applies to s 1 (3rd leg – salutary v deleterious)
          o Speech falls from core values (extremely low)
          o Therefore, on balance the law will survive
    Rules:
          o You do NOT need scientific proof
          o Must show wilful promotion of hatred
          o A constitution supporting an objective is stronger than a policy objective
          o Deal with low value speech at s 1 in the 3rd leg
    DISSENT (McLACHLIN)
          o Law could give media coverage to hate-mongers
          o Minimal impairment – law is vague, overbroad and subjective
                  Difficulty of someone relaying a ‘perceived truth’
                  Could curb citizens from participating in democracy – avoid
                     controversial issues

Ross v N.B. School District [1996]
    Anti-Semitic views from teacher – teacher was removed
    Held  reasonable limit on freedom of expression
    Restrictions on freedom of expression where they promote equality and
       multiculturalism in an educational environment can be justified

Sexual Obscenity
Butler [1992]
    Facts  owner of XXX – many videos go beyond any drawn line for criminal
       sensibility – challenge the vagueness of ‘undue exploitation’
    SCC  ‘undue’ – material that violates community standards in a very specific
       sense (when you wouldn’t tolerate other people seeing the material)
          o Takes a ‘harms-based’ approach
    Three classes of material:
          o (1) Joining material of sex with violence
          o (2) Material which is non-violent but which is degrading and
               dehumanizing and carries the substantial risk of harm to individuals and
               society
          o (3) Non-violent, non-degrading, non-dehumanizing but sexually explicit
               (rarely found obscene UNLESS it involves children)
    Important:
          o Court must avoid morality/taste argument  will fail (though criminal
               code being premised on an underlying moral value is ok)
    Court refusing to second guess Parliament
    Justified under s 1
          o Focus on material that is violent, degrading and dehumanizing – this area
               of 2(b) is not a core area (motivated by $)

Little Sisters
     Facts  Customs seizures – gay and lesbian bookstore – rules violation –
        procedural problems
     Binnie: Argues that Butler was wrong; specifically re: gay and lesbian erotica
            o Must also create a substantial risk or harm element
            o Language in Butler is about gendered nature of mainstream porn and
               subordinating treatment of women
            o Cannot be applied fairly – erotica plays a diff role in the gay community
               than in the heterosexual realm
     Customs applying law in contradiction to s 15 (disproportionate focus on gay)
     Similar to Eldridge, not the statute which dictated unfair application, blamed the
        custom officer’s conduct
     Found infringement; differed at remedies:
            o Majority  guidelines capable of being constitutionally administered
            o Dissent  Leg has to give better guidance (intelligible but failed to give
               adequate procedural safeguards)

Sharpe
    Same problem – applied to children – pressing and substantial objective (child
      porn)
    Not minimally impairing  McLachlin reads in an exception (materials created
      by a private user)
          o Law captured possession of material that would normally not be thought
              of as porn AND bared no/little risk to children
      Law prohibiting pornography should create exceptions where the actions are not
       contrary to the objective and severely limit speech




SECTION 7

Everyone has the right to life, liberty and security of person and the right not
to be deprived thereof except in accordance with the principles of
fundamental justice.
Everyone has the right to life, liberty and security of person AND not to be deprived
thereof EXCEPT in accordance with the principles of fundamental justice
     If one of thee three rights are breached – triggers P of FJ (Singh)
     Protects more than procedure (MVA of BC)
     Applies to depravations caused by the justice system and its administration
     Does not include corporations (Irwin Toy)

Test
      The applicant has the onus to show the state infringed:
          o (1) Is her life, lib, or sec of person interfered with? Or maybe [DO
             NOT BE FAR FETCHED]?
                  (a) Life interest include:
                  (b) Lib interest include:
                         Motor Vehicle Reference, BR
                  (c) Sec of person include:
                         Morgentaler, Rodriguez, G(J)
          o (2) Is the deprivation in accordance with P of FJ?
                  (a) Includes procedural fairness violations (or lack of)
                  (b) Substantive justice

What violates P of FJ?

Quick Reference
    Vagueness [NS Pharm]
    Criminal defence that’s randomly available (Morgentaler)
    Criminal defence that is practically unavailable due to state unfairness/delays
      (Morgentaler)
    Infringement of liberty was made out, but no infringement (BR)
    Where defence is arbitrarily withheld there is a violation (Rodriguez)

Criminal Context:

Nova Scotia Pharmaceuticals
      So vague as that it violates the P of FJ – unintelligible by those governed, those
       who govern and those who administer the law

Morgentaler
   Facts – Diff segments of women denied access to abortion – lack of access to this
     group  Diff. to qualify
   Three Interpretations (criminal context)
         o Dickson and Lamer
                Violate sec of person - Serious psychological stress
                Inconsistent with P of FJ – Procedural violation - manifesting
                   unfair at individ/national level
                Recognition of foetus interest
                Fail s 1 (proportionality)
         o Beetz and Estey
                Forcing a person whose health is in danger to choose btw
                   committing a crime or receiving no treatment at all
                Sec of person violated – unreasonable delays at hospitals
                Procedural violation (delays)
                State does have an interest – protect mother and foetus
         o Wilson
                Liberty and sec of person infringed – integrity of own body 
                   need ability to make fundamental personal decisions
                Issue of human dignity
                State does have interest in foetus (in s 1)  Balance
                   health/standards – do not infringe rights more than necessary
         o McIntyre and La Forest
                Section 7 not infringed – no sec of person breach – no Charter
                   protection for abortion
                Stress does not warrant Charter protection

Rodriguez [1993]
   Facts – Assisted suicide – s 241(b) CCC – discrimination of disabled – bodily
      control  right to lib, sec of person  lost 5-4 – impact decision on both
      majority and dissent – criminal code case
   Majority (Sopinka)  Belief in the sanctity of life – state will act on side of life
      (consistent with P of FJ)
         o Letting life run natural course overrides personal autonomy – security
              interest is engaged but justified (under P of FJ)
         o State has an interest in the P of FJ recognition (if violation, look to
              relationship btw the provision and state interest)
                   Protect the vulnerable  those who might be induced to suicide in
                      a moment of weakness
         o Not arbitrary because only a blanket bar will work
         o Security of person includes control over bodily integrity free from state
              interference (Wilson in Morg) and free from state imposed psycho-stress
              (Dickson in Morg)
           o Must reconcile right to life – right to liberty
      Dissent (McLachlin)  Violation of s 7 – should be dealt with under s 1 – will
       not be saved (mentions Morgentaler)
           o Freedom to choose what to do with ones life (if of sound mind)
           o Blanket prohibition discriminates against handicapped (indirect)
           o Arbitrary so far as it subjects terminally ill people to exclusion from a
               right others have  rendered a scapegoat – the chance that system may be
               abused is NOT ENOUGH to deny PL right to commit suicide
           o Parliament decided to legislate on assisted suicide  have a duty to
               apply legislation fairly!
      Lamer moot remedy 
           o Referred to it as discriminatory – disabled people categorically stopped
           o declare invalid, suspend for 1 year and then order priv remedy for PL

Non – Criminal Context:
    Section 7 beyond criminal law – applying to the enforcement of law by the state


BR (Jehovah’s Witness and Medical Intervention) [1995]
   Facts – severely ill child in need of transfusion – parent’s refusal – issue of
      religion  Children’s Aid Society applies successfully for wardship
   Majority: Adopt Wilson’s position from Morgentaler: Parent’s right to freedom
      of religion and to s 7 were not violated (7-0) (2(a) violation justified under s 1)
          o State intervention tolerated only when it is absolutely necessary – to be
              monitored by the courts (only when conforming to Charter values)
          o Liberty is not so narrow as to be only physical restraint
          o Individual autonomy in decisions of fundamental personal importance,
              right to nurture child are part of parent’s interest – state will interfere
              when not met
   Cory and Iacobucci  right to life of child – no s 7 violation
   The state will supersede parental authority where the rights of their children
      are threatened and where the parents (in)action exceeded the threshold of
      societal acceptability

Motor Vehicle Reference
   Section imposes a fine and imprisonment on a driver for driving while his/her
      licence was suspended (threat to security of person)
   P of FJ protect procedural rights
   P of FJ are not policy matters, they are principles which attach to the justice
      system and its administration

G(J) [1999]
    Facts – state seizing child from parents – mandate to protect child from parental
       neglect – extension of state custody orders – parental need of legal aid  not
       provided for in NB – life/lib/sec of person violated? Consistent with P of FJ?
      Restriction of procedural fairness  right to PF (right to impartial hearing,
       adequate notice, right of reply, meaningful participation)
           o Charter extending beyond criminal law
      Serious state-imposed risk  take away child (stigma, loss of companion)
      ISSUE OF FAIRNESS – serious proceedings/complex nature
      When denial of counsel constitute an infringement of a P of FJ: Counsel must be
       provided in state-citizen challenges:
           o (1) Serious interest at stake
           o (2) Complex proceedings(legally/factually)
           o (3) The effective parent is not capable of mounting own def
      Failed on s 1  deleterious effects of policy outweigh salutary effects of budget
       savings
      L’Heureux-Dube
           o Implication of guarantees under s 15 – equality interest should be
               considered in interpreting the scope and content of the interpretation of the
               rights guaranteed by s 7

Gosselin
    Facts – welfare in Quebec and age discrimination (under 30) – govt job training
       opportunities (placement not guaranteed) – denial of full benefit – class action
    SCC finds no s 7 breach – insecurity faced by Gosselin due to job market – not
       govt action (NO POSITIVE DUTY ON GOVT)
           o No s 15 breach  Inconsistent! – failed on branch 3 of s 15
    Dissent (Arbour) – State does have duty to protect life/lib/sec of person – under-
       inclusive



SECTION 15

    (1) Every individual is equal before and under the law and has the
     right to the equal protection and equal benefit of the law without
     discrimination and, in particular, without discrimination based on
     race, national or ethnic origin, colour, religion, sex, age or mental or
     physical disability.
    (2) Subsection (1) does not preclude any law, program or activity that
     has as its object the amelioration of conditions of disadvantaged
     individuals or groups including those that are disadvantaged because
     of race, national or ethnic origin, colour, religion, sex, age or mental
     or physical disability.
Need for clarity post-CBR  stronger protection (contradiction of Drybones and Lavell)
    Groups are being viewed equally within their own group – comparison to Nazi
       ideology
    Most impt of new rights  ‘equal benefit’
An important aside: Human Dignity Argument
    Emerged from Binnie in Little Sisters  used as a screen to prevent litigant from
      winning in cases where the SCC does not want them to win
    Iacobucci – reasonable person  Screen – does that reasonable person think that
      the claimant’s human dignity has been violated? Rarely will be the case

Every individual is entitled to equality before and under the law and equal protection and
benefit of the law without discrimination (and in particular, discrimination based on
analogous grounds
     Most claims fall under ‘equal benefit’ and protective claims – underinclusive

Two Types of Discrimination Claims

Direct
     A law which, on its face, discriminates (Gosselin, McKinney) – assigns benefits
       or burdens based on a ground

Indirect
     A law which is neutral on its face, that applies equally to everyone, but whose
         effect is to disproportionately exclude on an enumerated or analogous ground
             o Where most rules are now being tested – ie work on weekends, physical
                  requirements for police officers, blanket law against suicide
             o Need not prove intention to exclude – only that the effect took place

Eldridge (Distinction btw formal + substantive equality)
     Formalist argument - Govt refusal to fund sign language interpreters as both
       hearing and deaf people get funded for the same purposes
     Govt makes 2 other rejected arguments  too much $ AND floodgates (will
       have to fund 2nd language interpretation next)
     Not ancillary benefits  w/o interpreters deaf people cannot communicate with
       their Drs (do not receive equal benefit of health care)
     SCC:
           o Sign interpretation is NOT peripheral – strong example of adverse effect
               OR indirect discrimination

Vriend
    2nd example of formal v substantive (indirect discrimination)
    (1) Every disadvantage group except gays and lesbians access to mechanism to
       prevent discrimination (no way to redress for these groups)
    (2) Indirect – everyone has a sexual orientation, everyone NOT equal to do
       anything about it (heterosexuals do not face same disadvantage)
    Two forms of distinction
          o Other vulnerable groups included in the legislation
          o Btw heterosexuals and homosexuals
Corbiere
    S 77 of Indian Act requires band members to be ‘ordinarily resident’ on their
      reserve in order to be eligible to vote in the elections
    Found to infringe s 15  found to be an analogous ground

Andrews
   Unanimous on s 15(1) infringement – split 4:2 on s 1
         o Discrimination – denied right to practice calling on an analogous ground
            (discrete and insular minority)
         o S 15 should apply to all persons whether citizen or not
         o However – court should not second guess Parliament
   Section 15 jurisprudence – unpredictable  using flexible tests, strict tests – not
     following their rules
         o Andrews limited future challenges (unless could link the challenged laws
            to personal characteristics associated with common prejudices, stereotypes
            or patterns of disadvantage)
   Impt  intent need not be proven – sometimes same treatment is not good
   Section 1 Test  Fails on 2nd leg – though objectives may be good – invalidate
     under proportionality (not a valid requirement – citizenship is not right test)
   Lavoie v Canada  exemplifies the inconsistency of s 15 jurisprudence
         o Found citizenship preference did not violate Charter
         o Reasonable limit under s 1

Law
      Facts – widow (age 30) attempting to receive CPP compensation from her dead
       husband contributions  can only receive if over 45 or 35-45 if have dependents
       or have a disability (leg assumes these groups are disadvantaged) – PL/Widow
       argues age discrimination
      Attempting to resolve s 15 issues emerging from Andrews – a modified objective
       test has emerged  strike reasonable balance btw objective and subjective
       approach
      From Law  change from Andrews notion of showing diff or
       disadvantageous treatment on a prohibited ground of discrimination (that
       would = violation of s 15), now PL must establish that the violation implicates
       their human dignity

MvH
  Facts – Family Law Reform Act – co-habit – def of ‘spouse’ – s 29  applies to a
    man and a woman (not married, live together for 3 yrs)
  S 29 of FLRA violates  Same-sex couples are capable of having conjugal
    relationships of some permanence
  Law factors
        o (a) Is there pre-existing… ? Yes – obvious deprivation etc
                 No – Gonthier  states that they are stereotypes based on fact –
                   they are not made up – in this context it is heterosexual women
                   who are disadvantaged
           o (b) Does the distinction track real diff?
                    No, there is correspondence with actual need - people who become
                       independent need support – same sex need it too
                    Yes, Gonthier  states that it is not stereotype – it is reality –
                       focuses on women in heterosexual marriages are disadvantaged –
                       ameliorate disadvantaged women
           o (c) Does it have an ameliorative purpose?
                    N/A to majority ruling
                    Yes, Gonthier  ameliorative purpose here – reverse
                       discrimination here
           o (d) What is the nature of the interest (straight opinionated)
                    Cory – being denied – it is a big deal
                    Gonthier – says it is not that big of a deal
      Gonthier  consequences are not severe – ‘reasonable person’ would see that the
       leg takes into account accurate differences in a manner that respects the claimants
       dignity  ‘Reasonable Person’ shield


Four Analogous Grounds Identified by SCC
    Citizenship (Andrews)
    Sexual Orientation (Egan, Vriend)
    Marital Status (Trudel)
    Aboriginal Residence (Corbiere)

How to make out an analogous ground:
   Look to personal characteristics on which you were denied  unchangeability of
      distinction (immutable)
   McLachlin:
          o Discrete and insular minority (identifiable) OR
          o History of social disadvantage – political prejudice – subjection to
              stereotype

Distinction Rule which emerges from Law

      (1) The law draws a formal distinction OR the law fails to take account of real
       differences such that (neutral) law disproportionately affects claimant group/with
       the effect the law has a differential and adverse impact, AND
      (2) … On an enumerated ground or a ground analogous to such grounds, AND
           o Impt to acknowledge whether it is direct or indirect at this point
           o What are the indicia of an analogous ground? (Corbiere)
      (3) … That imposes a burden or deny a benefit in a manner that reflects
       stereotype (negative) or perpetuates or promotes second class status – ie the view
       that claimant is less worthy of concern/respect/consideration
           o In a manner that demeans the dignity of claimant as judged by a
               reasonable person in claimant’s circumstances who is aware of relevant
               background and context
           o Four Factors to help reach conclusion (is this demeaning to the dignity
             of the claimant?)  ON EXAM – 3 will do (clearest are 1 +4):
                  (a) Is there a pre-existing disadvantage?
                          If law worsens pre-exist disadv  strongest case
                  (b) Is there correspondence btw where the law draws
                     distinctions and actual needs of those included/excluded?
                          If it is a bad fit, it is probably discriminatory – think Vriend
                            – there was an ameliorative purpose but it excluded him
                          Did the law map actual need? – a line drawing issue
                            (where govt has aided a diff group)
                  (c) Is the law’s purpose ameliorative (of disadvantaged)
                          If you are more advantaged than the beneficiary, it is not
                            dignity eroding if you do not get what the needy get
                            (reverse discrimination)
                  (d) How severe is the impact of the law




SECTION ONE

The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.

     Sets out exclusivity  ‘subject only’ to reasonable limits, prescribed by law,
      demonstrably justified, free and democratic society
Therrens [1985]
          o Interpret the right generously in the first portion of the test as the court
             will be able to refer to s 1 (defend parliamentary authority)


Prescribed By Law – give notice to whom the law applies
    Conflict with s 7 if too vague
    Courts have preferred to deal with vagueness at 2nd stage of s 1

Vagueness

Osbourne v Canada [1991]
    Two ways in which vagueness can have an effect
         o So vague as to allow unlimited government intrusion – incapable of
             restraining govt power
         o By reason of its imprecision, a law may not qualify as a reasonable limit
    Best to deal with vagueness in the context of s. 1 rather than disqualify the law in
     limine
NS Pharmaceuticals
    Two rationales at foundation of doctrine of vagueness:
       1) Fair notice to citizen
       2) Limitation of Law Enforcement Discretion
              o A law must not be so devoid of precision that a conviction will flow
                  automatically from the decision to prosecute
    (1) Is there a need for this law to be flexible?
    (2) Language is an imperfect instrument
    (3) Too generally written – infinite state interpretation
    Will appear at minimal impairment in Oakes – preference not to be dealt with at
      ‘prescribed by law’ [R. v. Therrens]
    Test  Is it sufficiently grounded for debate? Can it guide adjudication? Is it
      sufficiently intelligent?

Oakes Test

Onus is on the party seeking to advance a rights claim – if the infringement is shown,
then the onus will shift to the govt to justify

      (1) The infringing law serves an objective sufficiently pressing and important
       to warrant to overriding the infringed right
           o ASIDE – consider only the objective when law was enacted
      (2)
           o (a) The infringing measure must adopt the means rationally
                connected to the above objective
           o (b) Do the means chose impair the right as little as possible
                     Judicial Deference to Govt  balancing competing interests,
                        allocating scarce fiscal resources, sci evidence conflicting/absent,
                        law aimed at benefiting vulnerable
           o (c) Is there proportionality btw the object and the adverse effect on
                rights [Oakes] AND btw those adverse effects and the actual salutary
                effects [Dagenais]?
      If fail, appropriate remedy will flow from that stage (Schachter)

Irwin Toy
    Distinction btw cases in which the govt is seeking to mediate interests of
       competing groups (be MORE deferential) and cases in which the govt is singular
       antagonist of the infringed individual

Thomson Newspapers
    To establish the objective of impugned legislation  canvas the nature of the
     social problem being addressed – CONTEXTUAL APPROACH
         o Determining the nature of the activity infringed
         o Determining the type of proof which a court can demand
          o Indicating the vulnerability of group at hand (subjective fear and
            apprehension of harm)
          o Determining the efficaciousness of a remedy

RJR MacDonald
   Contextual approach from Thomson  does not reduce the obligation on the state
     to meet the burden of demonstrating that the limitation on rights imposed by the
     law is reasonable and justified – PARLIAMENT OBLIGATION TO JUSTIFY

MvH
  Differentiate on objective purpose (provide women with support payments OR to
    keep financially weaker partner off welfare and save public $)
  Failed at rational connection  if to save public $, why exclude this group?




REMEDIES

    Section 52

Schachter
    Facts  Unemployment Insurance Act – s32 – discriminatory btw fathers of
      adoptive child and those paternal
    What is the appropriate remedy? Budgetary constraints of govt?
    Options  sever (in part), read-in, strike down, read down
          o Have ability to suspend with first 3
    Remedies – follow s 1 (Oakes):
          o If fail (1), strike down – fundamentally bad
          o If fail (2) a), strike down – not rationally connected
          o If fail (2) b), c)  striking down may be an overreaction
    Remedy only to the extent of the inconsistency: (1) Identify this extent, (2)
      exclude by positive or negative language
    Do not assume govt was intending to exclude – show discrimination, do not
      punish * Be as least intrusive as possible *
    From readings: When choosing a remedy under s 52:
          o Define the extent of inconsistency (where does it fail?)
          o Decide with Severance/Reading in appropriate
                  Remedial Precision
                  Interference with Leg Objective
                  Change in Significance of the remaining problem
                  Significance of the Remaining Portion
          o Whether to temporarily suspend the declaration of invalidity
    Appropriateness  Be concerned with substance, not form!
          o Sever
                 Sever when violation is precisely clear
                 Does the remainder make sense? (Morgentaler)
          o Read In
                 Difficult to be precise when reading in
                 If ambiguities – reading in is NOT the remedy  declare it
                    unconst and send back to leg
                 When not to:
                        Budgetary constraints – public expenditure out of
                           proportion to the original leg expend intention (is added
                           group larger or smaller than group benefiting?)
          o Strike Down/Invalidate
                 Most inconsistent with leg consent
          o Where to suspend
                 Danger to the public (possible chaos – ie minority language rights)
                 Where reading in cannot be clearly phrased
          o When 2 remedies perform same result 
                 option most in sync with Charter should be chosen (avoid equality
                    with vengeance): Phillips v Nova Scotia

MvH
  Reading in  rejected – why? It would solve the s 29 problem (include the same
    sex couples) but it would not allow them to opt out (avoid burden)
  If not clear on parliamentary intention  cannot strike down whole thing (unless
    you add a suspension – which is what they do)

Vriend
    Reading in  more plausible here (failed s 1 entirely)
    SCC was active in its approach in this case – picked the remedy consistent with
       the extent of the inconsistency of the impugned provision

								
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