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Irwin Home Equity Shuts Its Doors

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					Aboriginal Rights ........................................................................................................................................... 4
                       R. v. Sparrow (1990)........................................................................................................................... 4
                       R. v. Van der Peet ............................................................................................................................... 5
                       R. v. Gladstone.................................................................................................................................... 6
                       R. v. Sappier ....................................................................................................................................... 7
                       R. v. Powley ........................................................................................................................................ 8
Aboriginal Title ............................................................................................................................................ 10
           Reading Notes............................................................................................................................................... 10
                       Delgamuukw v. BC (SCC 1997) ...................................................................................................... 10
                       Adams ............................................................................................................................................... 11
                       Delgamuukw ..................................................................................................................................... 11
           The Duty to Consult ..................................................................................................................................... 12
                       Haida Nation v. British Columbia (Minister of Forests) (SCC 2004) .............................................. 12
                       Taku River Tlingit First Nation v. BC (SCC 2004) .......................................................................... 13
                       Mikisew Cree First Nation v. Canada (SCC 2005) ........................................................................... 13
           Lecture Notes................................................................................................................................................ 13
Application of the Charter ............................................................................................................................ 14
                       Charter Basics ................................................................................................................................... 14
           Interpreting Rights (in general) .................................................................................................................. 15
                       Purposive Approach: Hunter v. Southam.......................................................................................... 15
           When does the Charter apply? ................................................................................................................... 16
                       Retail, Wholesale, and Department Store Union v. Dolphin Delivery (SCC 1986) ........................ 16
           What are Governmental Actors and Actions? .......................................................................................... 17
                       McKinney v. U of Guelph (SCC 1990) ............................................................................................. 17
                       Stoffman v. Vancouver General Hospital (SCC 1990) ..................................................................... 18
                       Douglas/Kwantlen Faculty Assoc v. Douglas College (SCC 1990) ................................................. 18
           Governmental acts taken by non-governmental entities .......................................................................... 18
                       Godbout v. Longueuil (SCC 1997) ................................................................................................... 19
           Entities implementing government programs ........................................................................................... 19
                       Eldridge v. BC (SCC 1997) .............................................................................................................. 19
           Exercise of statutory powers of compulsion .............................................................................................. 19
                       Slaight ............................................................................................................................................... 19
           Government Inaction ................................................................................................................................... 20
                       Vriend v. Alberta (SCC 1998)........................................................................................................... 20
           Application of the Charter to courts and common law ............................................................................ 20
                       Hill v. Church Scientology ................................................................................................................ 20
Remedies ...................................................................................................................................................... 21
           S. 52 Remedies .............................................................................................................................................. 22
                      Roach, “Constitutional Remedies in Canada” .................................................................................. 22
                      Schacter v. Canada (SCC 1992) ....................................................................................................... 22
                      Vriend v. Alberta (SCC 1988)........................................................................................................... 23
                      M. v. H. (SCC 1999) ......................................................................................................................... 23
                      R. v. Sharpe (SCC 2001)................................................................................................................... 24
          S. 24 Remedies .............................................................................................................................................. 24
                      Little Sisters Book and Art Emporium v. Canada (SCC 2000)......................................................... 24
                      Eldridge ............................................................................................................................................ 25
Section 1 of the Charter ................................................................................................................................ 25
          “prescribed by law” ..................................................................................................................................... 25
                      R. v. Therens ..................................................................................................................................... 25
          Oakes Test: What is it, how does it work. .................................................................................................... 25
                      Oakes ................................................................................................................................................ 25
                      Dagenais ........................................................................................................................................... 26
          The development of Oakes: Context & Deference .................................................................................... 26
                      Thompson Newspapers ..................................................................................................................... 26
                      RJR MacDonald................................................................................................................................ 26
                      Lucas ................................................................................................................................................. 26
          Forms of Deference ...................................................................................................................................... 26
                      Supplement: NAPE v. Nfld ............................................................................................................. 27
                      Irwin Toy .......................................................................................................................................... 27
S. 2(a): Freedom of Religion ........................................................................................................................ 28
                      Moon, “Secularization of Religious Freedom” ................................................................................. 28
          Sunday Observance ..................................................................................................................................... 28
                      R. v. Big M Drug Mart (SCC 1985) ................................................................................................. 28
                      Edwards Books and Art v. The Queen (SCC 1986) ......................................................................... 29
                      March 9 ........................................................................................................................................... 31
                      Islamic Schools Federation of Ontario v. Ottawa Board of Education (Ont Div Ct 1997) .............. 31
          Freedom of Religion (Supp) ..................................................................................................................... 31
                      Infringement Test: Syndicat Northcrest v. Amselem (2004 SCC) ................................................... 31
          Religious Freedom and Education ............................................................................................................. 32
          Religion in the Public Schools ..................................................................................................................... 32
                      Zylberberg v. Sudbury Board of Education (OCA, 1988) ................................................................ 32
                      Freitag v. Penetanguishene (OCA, 1999) ......................................................................................... 33
                      Canadian Civil Liberties Association v. Ontario (Minister of Education) (OCA, 1990).................. 33
                      Trinity Western University v. British Columbia College of Teachers (SCC, 2001) ........................ 34
                      Ross v. New Brunswick School District No. 15 (SCC, 1996) .......................................................... 35
                      Chamberlain v. Surrey School District #36 (BCCA, 2000) .............................................................. 35
          State Oversight of Private Education ......................................................................................................... 35
                     R. v. Jones (SCC, 1986) .................................................................................................................... 35
                     Wisconsin v. Yoder (USSC, 1972) ................................................................................................... 37
          Public Funding of Religious Schools .......................................................................................................... 37
                     Adler v. Ontario (SCC 1996) ............................................................................................................ 37
          Freedom of religion and parental rights .................................................................................................... 41
                     B.R. v. CAS of Metro Toronto (1995) .............................................................................................. 41
Minority (4): No violation d/t internal limit on scope of section 2(a) .................................................... 42
          Cases from the Supplement...................................................................................................................... 42
                     Syndicat Northcrest v. Amselem (2004) ........................................................................................... 42
                     Multani .............................................................................................................................................. 42
                     The Hutterite Licence case (Alberta CA) ......................................................................................... 43
The position of marriage commissioners following the same sex marriage case ................................. 43
                     Bruker: .............................................................................................................................................. 43
                     Should the courts engage in disputes based on religious precepts where there are no
                     civil problems? .............................................................................................................................. 43
S.7 – Life, Liberty, Security of the Person ................................................................................................... 43
                     BC Motor vehicle Reference: ........................................................................................................... 44
          Section 7 and Bodily Integrity .................................................................................................................... 44
                     Morgentaler....................................................................................................................................... 44
                     Rodriguez .......................................................................................................................................... 45
                     Suresh ............................................................................................................................................... 46
                     Charkaoui v. Canada (Citizenship and Immigration) (supplement) ................................................. 46
          Life Liberty and SOP: Human Dignity ..................................................................................................... 47
          Parental Liberty? ......................................................................................................................................... 47
                     B.R. v. CAS of Metro Toronto (1995) .............................................................................................. 47
                     Blencoe: The limits of L/SOP protection outside the criminal law .................................................. 48
          Section 7 and Litigation of Poverty ............................................................................................................ 49
                     Gosselin ............................................................................................................................................ 49
                     Wiseman article ................................................................................................................................ 49
                     Banks ................................................................................................................................................ 49
                     Chaoulli............................................................................................................................................. 50
Section 15: Equality Rights .......................................................................................................................... 52
          The Idea of Equality .................................................................................................................................... 52
                     M. Schwarzschild, “Constitutional Law and Equality” (1996) ........................................................ 52
                     W. Black and L. Smith, “The Equality Rights” (1996) .................................................................... 52
                     W.S. Tarnopolsky, “The Equality Rights” (1982) ............................................................................ 53
          Section 15 and Substantive Equality .......................................................................................................... 53
                     Regina v. Drybones (SCC, 1970) ..................................................................................................... 53
                     Lavell (SCC, 1974) ........................................................................................................................... 54
                     P. Hughes, “Recognizing Substantive Quality as a Foundational Constitutional Principle (1999) .. 54
         Early Interpretation and Application of s.15: The Andrews Test and the 1995 Trilogy ...................... 54
                     Andrews v. Law Society of British Columbia (SCC, 1989) ............................................................. 54
                     Notes: The Implications of Andrews ................................................................................................ 56
         The “Equality Trilogy of 1995” .................................................................................................................. 57
                     Miron v. Trudel (SCC, 1995)............................................................................................................ 57
                     Egan v. Canada (SCC, 1995) ............................................................................................................ 57
                     Thibaudeau v. Canada (SCC, 1995) ................................................................................................. 57
         The Law Test ................................................................................................................................................ 58
                     Law v. Canada (Minister of Employmeny) (SCC, 1999) ................................................................. 58
                     Eldridge v. British Columbia (AG) (SCC, 1997) ............................................................................. 60
         Adverse Effects Discrimination .................................................................................................................. 62
                     (Meroin) British Columbia v. BCGSEU (SCC, 1999) ..................................................................... 62
         Finding and Recognizing Discrimination .................................................................................................. 63
                     M v. H ............................................................................................................................................... 63
         Significance of the Comparator Group: .................................................................................................... 64
                     Granovsky ......................................................................................................................................... 64
                     What‟s Law good for?  Rider ........................................................................................................ 65
                     Kapp: The end of the Law analysis ................................................................................................. 66




Aboriginal Rights
Section 35 of the Constitution:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be
so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed
equally to male and female persons.

    -    Constitution is not the only source of aboriginal rights.
    -    Other sources 1) aboriginal law; 2) legal agreements signed since contact including royal proclamation of
         1763; 3) custom and practice in inter-state relations.


R. v. Sparrow (1990)
Facts:
    - Sparrow, a member of the Musqueam Indian Band was charged under s.61(1) of the Fisheries Act of the
        offence of fishing with a net that exceeded the length permitted under the band’s food fishing license.
    -   Lawrence: this is a typical fact situation in a s.35 aboriginal right claim, with an intentional challenge to the
        regulation in question by the band wishing to secure their aboriginal right in court, where it is raised as a
        defense to the charge.
Issue:
    - Is there a constitutionally protected right to fish for salmon for food and social and ceremonial purpose
        for this band?
Decision:
    - Sparrow lays the framework out for s.35 claims.
    - Format of analysis.
                         i.       Has the right been extinguished prior to 1982? If no, go on:
                        ii.       What is the precise claim, & what is the evidence that this constitutes a right?
                       iii.       Has there been infringement of the right? If yes, go on:
                       iv.        Can the government justify the infringement?
    - Main question in Sparrow is whether the right was extinguished (it was not).
             o Court says you need “clear and plain legislative intent to extinguish that right. Inherently tough to
                 satisfy because enacting governments likely did not believe that an aboriginal right existed at the
                 time (except with land where they were nervous about potential land claims).
    - In order to establish the claim ask,
             o 1) If the right is an integral and distinctive part of the culture.
             o 2) Whether it existed prior to contact with Europeans.
    - Most claims stem from the idea that there is a fiduciary relationship between crown and aboriginal
        peoples. The Crown has a moral and legal obligation to act in the best interests of the aboriginal people.
                      Where there is uncertainty in terms, it is resolved in favour of aboriginal people. Where
                           crown does not do that, it is liable.
    - Infringement: Does the legislation in question have the effect of interfering with an existing aboriginal
        right? Is so prima facie infringement of s.35(1). Burden of proof is on the individual or group seeking the
        right.
    - On the facts in Sparrow, in order to determine whether the regulation was an infringement of this order,
        the court asked,
             o 1) Is the limitation unreasonable?
             o 2) Does the regulation impose undue hardship?
             o 3) Does the regulation deny to the holders of the right their preferred means of exercising that
                 right?

    -   Justification: In order to determine whether the infringement is justified, ask,
            o 1) Is there a valid legislative objective? (if leg. aimed at preserving s.35 rights valid, for example)
                      Read to be a “compelling and substantial objective”.
                      Lawrence: Court might ask whether there was consultation, was there compensation, was
                          the infringement as minimal as possible?
            o 2) The honour of the Crown is at stake in all dealings with aboriginals, must be maintained.
                      Stems from fiduciary responsibility, and special relationship with Crown of aboriginal
                          communities.
                      Recognition and affirmation (of aboriginal rights) requires sensitivity to, and respect for,
                          the rights of aboriginal peoples on behalf of the government, courts, and indeed all
                          Canadians.
    -   Result: Findings of fact insufficient to lead to an acquittal…sent back to trial.



R. v. Van der Peet
Facts:
    -   Dorothy Van der Peet charged under 61(1) of Fisheries Act which prohibits selling or bartering with any
        fish caught under the authority of an Indian food fish license.
    -   She sold 10 salmon on Sept. 11, 1987.
Issue:
    - How should the aboriginal rights recognized and affirmed by s.35(1) be defined?
Decision:
    - The court must capture both the ‘aboriginal’ and the ‘rights’ in aboriginal rights. Achieved through a
        purposive approach to s.35. (ie. “Interpreted in light of the interests it was meant to protect")
            o In doing so, it must remember the Sparrow discussion of the special fiduciary relationship
                 general principle underling all s.35 analysis.
    - Aboriginal rights must be directed towards the reconciliation of the pre-existence of aboriginal societies
        and with the sovereignty of the crown.
    - s.35 must aim at identifying the practices, traditions, and customs central to the aboriginal societies that
        existed in North America prior to contact with Europeans.
            o Adopts the “integral and distinctive” language from Sparrow.
    - Test: In order to be an aboriginal right an activity must be an element of a practice, custom, or tradition
        integral to the distinctive culture of the aboriginal group claiming the right. (note: see later refinements)
    - Something without which the society would be fundamentally different.
            o Needs to be continuity with pre-contact practices. Where merely adaptation, claim allowed.
    - In this case, the practice arose entirely after contact, so right not allowed.
            o Lamer held that the exchange of fish for money or other goods was not proved to be an integral
                 part of the distinctive part Sto:lo culture that existed prior to contact. Appeal dismissed.
    - Elaboration of the integral and distinctive test (some of which is changed in Sappier).
            o Courts must take into account the perspective of aboriginal peoples themselves.
            o Courts must identify precisely the nature of the claim made.
            o In order to be integral, it must be of central significance to the aboriginal society in question.
            o The practices which constitute aboriginal rights are those which have continuity with the
                 practices, customs and traditions that existed prior to contact.
            o Courts must approach evidence differently.
            o Specific, rather than general basis for aboriginal rights. ( case by case basis)
            o Practice must be of independent significance to the aboriginal culture in which it exists.
            o Requirement is of distinctiveness, not that it be distinct.
            o Practice which develops solely in response to European influences will not meet standard.
            o Courts must take into account both the relationship of aboriginal peoples to the land, and the
                 distinctive societies and cultures of aboriginal peoples.

Dissent:
    - Bastarache  “dynamic right” doesn’t like the idea of the rights being frozen in time at the time of
         contact. Argued that the sale of fish was significant and fundamental to the culture and social organization
         of the Sto:lo, and that it had not been extinguished prior to 1982.
    - McLachlin: What is the difference between the exercise of the right and the enjoyment? i.e. What is the
         difference between living on the fish, and selling it to make money and subsisting on that money?


R. v. Gladstone
    - Claim is for an aboriginal right to sell herring spawn commercially on the open market.
    -    “The Effect of Context on the Justification Analysis” is to distinguish those rights with an “internal limit”
        on the exercise of the right (for food, or for customary purposes) from those with no internal limit
        (consumption would be determined by the demand on the commercial market). Where there is no
        internal limit, the priority doctrine must give substantive and procedural priority to aboriginal interests,
        but it will be something less than exclusivity but which nonetheless gives the right priority.
    -   Decision upholds the questions re: priority from Sparrow, but also gives more shape to it inquiry:
    -   Ask: whether the government has accommodated the exercise of the right; whether the objectives of the
        government in making the regulation take the priority into account; the extent of participation of rights
        holders relative to their population; how important the fishery is to the economic and material well-being
        of the band; criteria taken into account by govt. in allocating licenses to different users.
    -   “after conservation goals have been met objectives such as the pursuit of economic and regional fairness,
        and the recognition of the historical reliance upon, and participation in, the fishery by non-aboriginal
        groups, are the type of objectives which can (at least in the right circumstances) satisfy this standard. In
        the right circumstances, such objectives are in the interest of all Canadians and, more importantly, the
        reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful
        attainment.” (para. 75.)



R. v. Sappier
    - Mi’kmaq band members were charged with harvesting Crown lumber without authorization in violation of
        NB’s Crown Lands and Forests Act, claimed an aboriginal right to harvest wood for personal use as a
        defense.
    - Bastarache:
            o The focus on the resource (wood) is not crucial. Rather, the pre-contact practice is the critical
                thing for the Court to identify. In the case of the migratory Mi’kmaq, the practice is one of
                harvesting wood for certain uses that are directly associated with that particular way of life
                (shelter, transportation, tools and fueldomestic uses).
            o Characterizing the right as a domestic one is significant NOT commercial. Wood cannot be
                traded, sold, or bartered to produce assets or money (personal use). Distinction which is again
                important at the priority/allocation stage.
            o “Flexibility is important when engaging in the Van der Peet analysis because the object is to
                provide cultural security and continuity for the particular aboriginal society. For this reason courts
                must be prepared to draw necessary inferences about the existence and integrality of a practice
                when direct evidence is not available. (ie. they’ll need to take oral histories seriously).
            o Distinctive does not mean distinct, a practice only need be distinctive. Distinctive = characteristic;
                Distinct=unique.
            o Meaning of “distinctive culture”: court must seek to understand how the particular pre-contact
                practice relied upon relates to the way of life.
                     On the facts, “the practice of harvesting wood for domestic uses was undertaken for
                         survival purposes including shelter, transportation, fuel, and tools is directly related to the
                         way of life. The fact that harvesting wood for domestic uses was undertaken for survival
                         purposes is sufficient, given the evidence adducted at trial, to meet the integral to a
                         distinctive culture threshold.
                     Although there was a direct relationship in this case, the directness relationship to the
                         way of life is not required for all cases.
    - Sappier approach is more fluid, and recognizes the complexities involved in defining culture, and in
        compartmentalizing it. Van der Peet unreasonably cabins the right to ‘aboriginal’ uses. This case opens
        things up to effectively preserve the purpose of s.35 which is said to be to preserve “cultural continuity
        and security”.
    - “The cultures of the aboriginal peoples who occupied lands now forming Canada prior to the arrival of the
        Europeans, and who did so while living in organized societies with their of distinctive ways of life, cannot
        be reduced to wigwams, baskets, and canoes”. (161)
    - Binnie: concurring opinion.
            o   While recognizing that trade outside the community would be commercial, Binnie argues that
                trade within the community would reflect the division of labour within that community, and
                would be more efficient that requiring everyone to do everything for themselves.


R. v. Powley
Facts: Métis members Steve Powley and his son Roddy charged with unlawfully killing a moose. Claimed an
aboriginal right as Métis to hunt for food in the Sault St. Marie area.
Decision:
    - Right characterized as the right to hunt for food in the environs of Sault St. Marie.
    - The ethnogenesis of the Métis (a mix of Europeans and aboriginals) arguably renders the Van der Peet
        pre-contact test inapplicable.
    - Membership criteria for Métis s.35 rights:
             o 1) self-identification
             o 2) ancestral connection
             o 3) community acceptance
    - Relevant time frame:
             o Court rejects the argument that Métis must root their claims in the aboriginal ancestor’s rights.
                 S.35 explicitly protects Métis rights so to require otherwise would be to not afford them their
                 constitutionally guaranteed protections.
             o The relevant time frame is, instead, the period prior to European “control”.
    - In this case, no extinguishment argument, so once right is established, look to justification.
    - Limit to conservation justification
             o The Court says you need some evidence of endangerment to use conservation as a justification of
                 infringement.
    - Post-Powley, MNO harvester cards issue has been resolved in R. v. Lauren (?)

Lawrence :
   - 1) what other aspects of the VDP test could be affected or altered by Powley? (time period, but what
       else?) Look at language integral to a distinctive culure test: how does the exclusion of post-contact
       developments apply where the test date is changed.

    -   2) What about reverse effect? Is there something about Powley that should extend “control” test to all
        aboriginal rights. Kinds of things that aboriginal rights ought to protect  pre-contact-ness of the culture
        vs. reconciliation objective (should it encompass some idea of cultural change, and that change ought not
        be used to deny claims…)
                                                                                         Pre 1982
                                            I. Has the right been Extinguished? Clear and plain intent to extinguish is required
This map is an overview of the steps                                                     Detailed regulation is not extinguishment
of the analysis, rather than a complete
illustration

                                                                                                                           Identifying the
                                                                                                                           nature of the
                                                                                                                           claim
                                                                                                                                                                                 Test from Delgamuukw
                                                        II. What is the Claim? How will it be Established?
                                                                                                                           Establishing the Right          Aboriginal Title
                                                                                                                                                           Aboriginal Rights
                                                                                                                                                                               Custom, Practice, Tradition, Integral
                                                                                                                                                                               to the Distinctive Culture

  Section 35.1 Aboriginal Rights Overview
                     03/02/2005 - v 4

                                                                 III. Has the Right been Infringed?




                                                          IV. Can the Government Justify the                   Is there a valid, compelling, substantial
                                                                                                               objective?
                                                          Infringement?
                                                                                                               Is the special trust relationship and
                                                                                                               responsibility of the Crow n honoured?
Aboriginal Title
Reading Notes
   -    Recognition of aboriginal land use and Canada’s negative impact on these systems has been slow
   -    First case dealing with aboriginal title was St. Catherine’s (1888) – held that aboriginal title was personal,
        usufructuary, and dependent on the good will of the sovereign
   -    Revised in Calder: SCC said aboriginal title was a pre-existing interest in land flowing from indigenous laws
        cognizable under the common law
   -    Further clarified in R. v. Guerin (1984): aboriginal title is a sui generis interest in land
             o Also said fiduciary obligations are incurred when a government deals with aboriginal title lands
   -    R. v. Adams (SCC 1996): held aboriginal title is a subset of aboriginal rights. Quite a departure
             o Provides a framework for content and proof of aboriginal title


   -    Aboriginal title is particularly contentious in BC
   -    One of the first acts of the BC legislature after entering the confederation in 1871 was the removal of
        Aboriginal peoples to reserves, and the explicit denial of land rights
   -    Issue of aboriginal title in BC didn’t receive treatment under s. 35 until Delgamuukw

Delgamuukw v. BC (SCC 1997)
Facts

    -   Chiefs claim aboriginal title over land in BC on behalf of their respective Houses
    -   BC counterclaims for declaration that the appellants have no right to or interest in the land
Issue

   -    What is the nature and scope of the constitutional protection afforded by s. 35(1) to common law
        aboriginal title
Analysis

   -    Aboriginal rights are sui generis and demand a unique approach to the treatment of evidence
             o Requires courts to consider oral histories of aboriginal societies, which for many are the only
                  historical record
             o Being sui generis, Aboriginal title is distinguished from normal proprietary interests; can’t be
                  explained in terms of common law rules of real property or to the rules of property found in
                  aboriginal legal systems - Must be understood by reference to both
   -    Dimensions of aboriginal title:
             o Inalienability: land held pursuant to aboriginal title is inalienable to third parties - can’t be
                  transferred, sold, or surrendered to anyone but the Crown
             o Source: AT arises from prior occupation by aboriginal peoples
             o Communal: aboriginal title can’t be held by individuals; it is a collective right to land held by all
                  members of an aboriginal nation
                       Decisions with respect to that land are also communal
   -    Aboriginal title encompasses the right to exclusive use and occupation of land held pursuant to that
        title for a variety of purposes, which need not be aspects of aboriginal practices, customs, and traditions
        which are integral to distinctive aboriginal cultures, but can’t be irreconcilable with the nature of the
        group’s attachment to that land
    -   Example of the limitation: if aboriginal title is established with reference to use of the land as a hunting
        ground, it can’t be used in a way that would destroy its value for that use
            o This is the reason for the inalienability dimension
            o And if land is used in this way, it must be surrendered
    - Proof of aboriginal title test
            o Adapts test from Van der Peet: (i) the land was occupied prior to the assertion of British
               sovereignty, (ii) if present occupation is relied on as proof, there must be a continuity between
               present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been
               exclusive
            o (i) because aboriginal title arises from prior occupation (just like aboriginal rights arise from pre-
               contact culture)
            o (ii) no need to establish “unbroken chain” of occupation, nature of occupation may change
            o (iii) exclusivity test: intention and capacity to retain exclusive control
                      Doesn’t decide what to do if there’s a joint title claim
    - Justification test
            o Principles from Sparrow and Gladstone are operative
            o Range of objectives that can justify infringement is fairly broad: development of agriculture,
               forestry, fishing, mining, hydroelectricity, general economic development, conservation,
               infrastructure, settlement of immigrants
            o Relevant factors: exclusive nature of aboriginal title, the right to choose how land is used,
               economic aspect
Lecture Notes

Adams
   - AT is a subset of AR. Prior, it was thought that connection to land was the basis for AR
   - Importance of new development:
          o Claims to land bring greater opportunities to aboriginal groups – title claim makes it unnecessary
               to establish specific practice rights
          o Delineates difference between aboriginal title and common law land title
                    More stewardship than ownership
                    Land is attached to communities/groups rather than individuals
   - aboriginal land is inalienable; can’t be disposed of except to the Crown, and the Crown must have the
      interests of the community and its members as its only priority when dealing with that land
   - It’s a form of inherent legal interest – grounded in occupancy that existed prior to the Canadian state
   - These interests doesn’t justify historical treatment of land in Canadian law, i.e. extinguishment of claims,
      refusal to hear claims
   - Nor do they justify restricting aboriginal title to protection of activities aboriginals engaged in on that land
      prior to Canadian sovereignty

Delgamuukw
   - Claim has been actively underway for over 100 years
   - In court for over 10 years
   - Opened up evidence rules
   - Court said it doesn’t want to decide these claims – should be dealt with by government
   - L: to what extent do these cases facilitate negotiated settlement? Are they directed at this?
   - Claim to about 58k km2 of BC interior
   - More than 80% of BC is under land claim
   - Court essentially decides three things
          o What AT is, what it allows, doesn’t allow
   - At trial: Evidence of prior occupation came from songs – admitted but given little weight (couldn’t serve as
      evidence of use or occupation)
   -    Settler sources used to restrict claim
   -    On appeal, court said songs should have been given weight.
            o Reconciliation requires acceptance of oral history
   -    Aboriginal title = exclusive use and occupation of land
   -    Rationale of exemption – land has to be preserved
   -    Land has to have been occupied prior to sovereignty. Date is important because that’s when the crown
        acquired title
   -    Occupation means either physical occupation or governed under aboriginal law (assertion of control,
        exclusion of others)
            o Centrality of/substantial connection to land still required, but usually assumed
            o Continuity not required, just some connection – movement of aboriginals off land by settlers
            o Exclusive occupation means intention and capacity to retain exclusive control
                      Ability to repel reproachments, or grant permission
                      Implies possibility of joint title between two groups
   -    Justification: very little not on the list
            o Still requirements for justification – compensation, consultation, maybe participation
            o Allocation/priority test: aboriginal title includes right to choose use of land
   -    Significance of case – even though aboriginal title is sui generis land claim, it nevertheless warrants
        constitutional protection
   -    Aboriginal prior occupancy has two consequences
            o Basis for site-specific right
            o Basis for land title – confers with it right to choose uses to which the land will be put

The Duty to Consult
Reading Notes

   -    Does s. 35 protect Aboriginal rights before they have been proven in court or before treaties have been
        negotiated?
   -    In a trilogy of cases, the SCC held that s. 35 imposes on the Crown a duty to consult, and in some cases
        accommodate aboriginal interests before authorizing activities that could have a negative impact on their
        interests
   -    Applies to both federal and provincial governments
   -    Doesn’t amount to an aboriginal veto

Haida Nation v. British Columbia (Minister of Forests) (SCC 2004)
Facts

   -    Queen Charlotte Island were subject to unresolved Haida land claim
   -    Crown issues licenses to cut trees on the islands, significantly changed one of these - Haida claiming govt
        breached fiduciary duty to them
Issue

   -    Was the government required to consult with the Haida about decisions made concerning the forests
        before they have proven their title to the land?
Decision

   -    Govt has a duty to consult with aboriginal peoples whenever government decision-making could adversely
        affect an aboriginal right or title, and the duty is extended to cases where claims have been asserted but
        not yet proven
   -    Duty to consult is grounded in the principle of “the honour of the crown”
           o    “In all its dealings with aboriginal peoples...the Crown must act honourably...required if we are to
               achieve the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the
               Crown”
           o The HOC gives rise to different duties in different contexts
           o The HOC requires that aboriginal rights be determined, recognized, and respected – requires the
               Crown, acting honourably, to participate in processes of negotiation
           o Duty to consult arises when the crown has real or constructive knowledge of the potential
               existence of the aboriginal right/title and contemplates conduct that might adversely affect it
           o the duty depends on preliminary assessment of the strength of the claim and the seriousness of
               potentially adverse effect upon the right or title claimed
           o Duty can range from consultation to full consent
           o Good faith dealing is required from both sides at all times
   -   Here, Haida had a good prima facie case for their claim, Crown knew their potential rights could seriously
       be affected by changing the license

Taku River Tlingit First Nation v. BC (SCC 2004)
   - Involved application by a mining company to the BC government for permission to reopen an old mine in
      an area subject to an unresolved land claim
   - TRTFN sought declaration that the project approval was legally invalid
   - Court ruled the Crown had a DTC, but had discharged it with an environmental assessment process which
      the TRTFN participated in and contributed to
   - DTC ≠ duty to agree with aboriginals
   - balancing of interests is important here (see case again)

Mikisew Cree First Nation v. Canada (SCC 2005)
   - Federal government proposed road on land surrendered by a treaty in 1899
   - Treaty provides right to hunt, fish throughout the territory, except on land used for settlement, trading,
       etc
   - Court ruled the government breached the DTC: Crown had obligation to study the impact of the project
       on the Mikisew rights, communicate its findings, and engage with them with the intention of substantially
       addressing their concerns
           o Lawrence: vague duty, but seems greater than in Taku River
   - Proposed road was minor, on surrendered lands – duty to consult was at the low end of the spectrum

Lecture Notes
   -   Most land claims are under treaty or stagnant negotiations
   -   Meanwhile economic development, etc, continues. What can aboriginal do?
   -   Gives rise to duty to consult
   -   Procedurally: groups can bring suits to force government to live up to obligation to consult
   -   Scope of duty shifts with nature of claim, circumstances
   -   If crown doesn’t meet obligation, court issues injunction to stop activity
   -   Don’t have to make out claim before DTC arises – possibility of profound alteration/destruction of land
       while claim is being decided
   -   Biggest things to come out of Delgamuukw are the DTC cases
   -   But still pose problem for aboriginals in terms of resources required in consultation process

   -   Basis for DTC is honour of the Crown (related to fiduciary duty) – required reconciliation, which is the
       purpose of s. 35
   -   Requires be determined, recognized, and respected
   -   Duty exists even without decision establishes the right
(Missing: Charter authors…to come shortly).
Lawrence Summary on Charter Articles
      Williams and Hutch
           o Both left wing, CLS people
           o Contrast their positions with Weinrib
           o Hutch
                    Hutch says law is a sham, since it is a reflection of the elite’s values
                    He asks: why do we let a totally unrepresentative and bogus institution take it on (Hutch
                       thinks it should be a democratic system
           o Williams
                    She does not agree with Hutch entirely, she believes that a Charter provides a way of
                       articulating needs, which has a form of power
                    She recognizes that the law has had some victories, despite the unrepresentative majority
      Petter
           o Also left
      Weinrib
      Morton & Knopp
           o Right wing
           o Agrees with Hutch and Petter – judges are elite
           o Introduce the idea of the court party – people that go to the SCC to get what they want (things
               they can’t get through the democratic process)
                    Believes that damage is done to the democratic system when this occurs
      Monahan
           o He believes judicial review is appropriate when it is sufficiently limited
           o The appropriate role is to protect and enhance democracy
           o He believes the provisions of the Charter are written with an eye to enhancing and protecting
               democracy
      Lawrence’s Expectation
           o Use these to look at how the different approaches are similar and different to each other



Application of the Charter
Charter Basics
   - All of the rights possibly necessitate a two-stage analysis
   - Claimant must prove that right has been violated
   - If yes, government must then show that rights-violating measure is a reasonable limit that can be
       demonstrably justified in a free and democratic society
          o If yes, it’s saved (there’s still a rights violation)
          o If no, s. 52 remedy – no force and effect
   - S. 1 says limit not prescribed by law cannot be justified
          o e.g. a discriminating customs official
   - Idea is that if the government wants to limit freedoms, it should be put in law and be subject to
       democracy
Interpreting Rights (in general)
Purposive Approach: Hunter v. Southam
    - Judgment about scope of a particular right can only be made after underlying purpose is specified, or
       after delineating the nature of the interests it is meant to protect
Facts

    -   Statutory basis for search and seizure of records didn’t require judicial approval
    -   Challenged on s. 8 – guarantees freedom from unreasonable search and seizure
Issue

   - Meaning of “unreasonable” in s. 8
Analysis

    -   Interpreting constitution is crucially different from statute
            o Statutes define present rights and obligation, and are easily enacted and repealed
            o Constitution looks to the future, concerns unremitting protection of individual rights and liberties
                and is not easily repealed or amended, so it must be capable of growth and development to meet
                new situations
    -   Cites Edwards living tree approach
    -   Charter is a purposive document, purpose is to guarantee rights and freedoms within reason, constrain
        government interference and actions
    -   Reasonableness assessment focuses on perspective of claimant
    -   Conclusion: s. 8 protects reasonable expectation of privacy (rather than property, as in US).
            o Act here is invalid
Notes

    -  Motor Vehicle Ref: decision to entrench Charter made by elected reps, they chose to extend scope of
       constitutional adjudication – adjudication of Charter must be done without doubts as to legitimacy
          o This affects s. 1 analysis
Lawrence

    -   How to operationalise purposive approach not clear, but case gives some guidance
    -   Generous interpretation
    -   No dictionaries
    -   Look at perspective of rights holder
    -   We don’t need to create internal limits to the right because we can create reasonable limits in s. 1
            o This contrasts US rights
    -   But we’ll see this happen for ss. 7-15 rights


Other aids to interpretation

    -   ss. 27 and 28: interpreted to be interpretive guides for determining scope of rights (with respect to the
        right and its limitation at s. 1)
             o 27 refers to multiculturalism
             o 28 rights are equally applicable to male and female persons
    -   Helps because there are always competing definitions that have merit
    -   Parliamentary debates not considered helpful, rarely used
             o Speeches and statements are unreliable
             o Freezes rights in time, stunts growth of living tree
            o Purposiveness needs to relate to document as a whole, not just the particular provision
    -   Don’t turn to pre-charter jurisprudence – usually used as an example of how not to interpret rights
    -   International sources
            o Charter drafters turned to other rights protecting instruments – carries over to interpretation
            o Lots of early reference to US Bill of Rights in jurisprudence, but it’s only vaguely
                relevant/persuasive if at all
            o International human rights law is relevant and persuasive – international sources will be
                considered where text is similar and where Canada is a signatory
            o Where Canada is a signatory, it’s obliged to comply with
            o But international law is still not binding
            o Consider Universal Declaration of Human Rights; International Covenant on Civil and Political
                rights; International Covenant on Social and Economic rights
                     Quite relevant/persuasive and increasingly so
                              Baker was a huge breakthrough in this regard
            o Not a lot of foreign domestic jurisprudence cited in Canada
            o Core of international documents tends to be recognition of equality of human beings, in various
                contexts (minorities, access to justice, positive rights)
                     Presents an understanding of what rights are all about

When does the Charter apply?
    -   The answer lies in s. 32 “This Charter applies
                (a) to the Parliament and government of Canada in respect of all matters within the authority of
                Parliament
                (b) to the legislature and government of each province in respect of all matters within the
                authority of the legislature of each province
    -   Does this means that the Charter is limited to government activities, or is it just making clear that it does?
    -   What are government activities? No clear distinction between public/private
            o Involves views of what government should be doing
    -   Why shouldn’t the Charter just apply to everything?

Retail, Wholesale, and Department Store Union v. Dolphin Delivery (SCC 1986)
    - Conclusion: Charter does not directly apply to private actors
    - Leading case, but doesn’t currently apply with full force as it was originally intended
Facts

    -   Court order restrained union from picketing on D’s premises
    -   D was doing work for employer during strike
    -   Legislation didn’t cover this secondary picketing
    -   Union seeking to have injunction overturned pursuant to s. 2(b)
Issue

   - Does the Charter apply
Holding

    -   Charter does apply to common law (s. 52 says “any law”), but not to litigation between private parties
           o Bizarre holding
Analysis

    -   S. 32 specifies that Charter applies to legislative, executive, and administrative branches
            o And legislation is the only way the government can infringe the Charter
   -    But the charter doesn’t apply to injunctions – can’t equate court order with government action
            o If the Charter precludes making an order because rights would be infringed, all private litigation
                would be subject to the Charter
   -    government action to which Charter is applicable:
            o Includes regulations, delegated legislation, by-laws, orders in council
   -    But Charter isn’t irrelevant to private litigants; common law should be applied and developed in a manner
        consistent with enshrined Charter values
            o In practice, then, we say there is a violation of the underlying value of X, and we are going to
                interpret the common law this way
Notes

   -    Lots of criticism of this decision - drew the line too narrowly to government activity
             o Provincial statutes govern private relations – different Charter application in different provinces
             o Some Charter rights are directed at courts, but court orders aren’t bound by Charter
   -    Hogg: common law rules should be subject to Charter
             o US interpreted Bill of Rights this way
   -    Is this approach consistent with “large and liberal” interpretive principle


What are Governmental Actors and Actions?
   -   Two things can fall under s. 32 – government actors and actions
   -   Government actors include components of legislative and executive branches, and entities controlled by
       government and/or exercising governmental functions
   - Non-governmental actors can be subject to Charter if they are engaged in government acts (eg
       implementing a government program, exercising a power of compulsion conferred by the state)
   - Also applies to government inaction because charter imposes positive obligations
   - Not all actors that have power conferred on them by government, or that receive public funding, are
       subject to Charter under s. 32
Lawrence

   -    Not enough cases to provide clarity here
   -    Eg no decision clearly says municipalities are covered by s. 32
   -    Significance – you don’t know whether you have rights in all kinds of situations
   -    Test seems to be routine and regular control by government...

McKinney v. U of Guelph (SCC 1990)
Facts

    -   Staff members challenged mandatory retirement policies under s. 15
Issue

   - Whether universities are government actors under s. 32
Holding

   - University policies did not constitute government action
Analysis

   -    Exclusion of private activity was deliberate
   -    Historically constitutional rights are directed at government (US as model)
            o Designed to prevent authoritative infringement of freedom
            o Only government is required to be constitutionally “shackled” to respect individual rights
   -    Government can regulate/legislate protection of human rights
   -    This is a classic liberal position – don’t want to overreach protection- would strangle society –
        paradoxically diminish freedom
    - Mere fact that a university is a creature of statute does not make its actions subject to Charter because
        this creation doesn’t mean that it’s performing government actions
    - Enforcing mandatory retirement is not an action taken under statutory compulsion, so the Charter doesn’t
        apply
    - So the only way to save case for McKinney is if university is government actor
    - Court cites factors that aren’t necessarily indicators of a government actor - serving public interest,
        government funding, government regulations
    - What is relevant is whether the university is exercising governmental functions
    - Key point: university has its own governing body which the government doesn’t control; it retains
        autonomy despite being heavily regulated
             o Though university’s fate is largely in the hands of the government, it is not a government organ
    - How would you change facts to make the university subject to Charter?
             o Greater control by government in appointments
             o If there was a statute requiring mandatory retirement
Wilson’s dissent

   -    Rejects concept of minimal state on which majority’s opinion rested, contrasting role of Canadian
        government with US
   -    Sets out different criteria for government entity (547)
Notes

   -    Same result in Harrison v. UBC

Stoffman v. Vancouver General Hospital (SCC 1990)
    - Dealt with mandatory retirement of hospital board
    - 14/16 were appointed by the government
    - Governing statutes had to be approved by the government
    - But hospital not part of government
    - Charter would have applied if there had been routine and regular control was in the hands of
       government, or if the policy was dictated by government
    - Dissent (LD, Wilson, Cory) – hospital acting as government

Douglas/Kwantlen Faculty Assoc v. Douglas College (SCC 1990)
   - Different result
   - Provincial minister allowed to establish and issue directions, approved all by-laws
   - Distinguishing factor: government may direct operations of the college, therefore college is performing
       acts of government in carrying out its functions
           o Institutions above were largely autonomous, whereas this one was subject to routine and regular
                government control


   -    R. v. M (MR): SCC assumed without deciding that Charter applied to public school
   -    undertakings in a contract that a governmental entity agrees to are subject to Charter, even the
        undertakings of a private party (Lavigne)
   -    Whether Crown Corporations are subject is not settled

Governmental acts taken by non-governmental entities
   -    Fall under s. 32
Godbout v. Longueuil (SCC 1997)
   - City of L requires employees to live in the city
   - G signed a contract to that effect upon being hired. She moved and got fired
   - Case decided under QB Charter
   - In concurring opinion, LaForest held that municipalities are subject to Canadian Charter
Analysis

   -    Charter applies to entities other than federal/provincial legislatures/governments that are in reality
        governmental in nature, as evidenced by governmental control over them or by governmental functions
        they perform
            o This is specifically contemplated in s. 32(1)
   -    Otherwise government could shirk Charter obligations by conferring power on other entities and having
        them carry out governmental functions
   -    Just performing a public function doesn’t mean the entity is governmental
   -    Municipalities are clearly governmental entities
            o Elected
            o Taxing power
            o Make, administer, enforce laws
            o Derive authority from provinces
   -    Cites Slaight for salient factors that make non-government entities subject to Charter: exercising
        governmental powers conferred upon them by appropriate legislative body
Notes

   -    This is minority opinion – not the law – but lower courts have reached same conclusion
   -    Charter applies to LSUC rules

Entities implementing government programs
Eldridge v. BC (SCC 1997)
   - Act gives hospitals discretion to decide which services to provide free of charge
Analysis

   -    Legislatures cannot authorize a person or entity to infringe the Charter
   -    Here the government defines the content of health service to be delivered by the hospitals, and the
        person who can receive it
   -    There hospitals carry out governmental objectives. Hospitals are merely he vehicle for delivering a
        government program
   -    Though hospitals are autonomous in day to day operations, the provision of medical service is set out in
        the Act
   -    Government can’t shirk constitutional obligations through the Act
   -    Delivery of services through act makes hospital agent of government


Exercise of statutory powers of compulsion
   -    Charter applies to non-governmental actors exercising coercive statutory powers

Slaight
    - Labour adjudicator orders employer to write favourable letter of recommendation
    - Discretion conferred on adjudicator by legislation – charter applies
    - Therefore adjudicator doesn’t have power to make an order that would infringe the Charter
   -    Result from this case is that some adjudicative bodies such as administrative tribunals are bound by the
        Charter but courts aren’t (insofar as their orders are based on common law)

Government Inaction
Vriend v. Alberta (SCC 1998)
    - Challenge to deliberate omission of sexual orientation from AB’s Individual Rights Protection Act
    - Cory discusses why Charter applies
Analysis

   -    IRPA is challenged because it doesn’t protect Charter rights – it’s underinclusive
   -    S. 32(1)(b): Charter applies to “all matters within the authority” of the government
   -    not just to positive acts
   -    failing to act at all would not have saved AB here – certain provisions (e.g. minority language rights)
        require positive action
Notes

   -    several cases that once the government decides to implement a policy or program, it must do so in a non-
        discriminatory manner
   -    but little judicial support for view that s. 15 imposes positive obligations to ameliorate inequalities
   -    Dunmore v. ON: SCC said s. 2(d) imposed obligation on government to protect vulnerable groups’ right to
        freedom of association “in order to make the freedom...meaningful”
            o Said court’s understanding of “state action” has matured since Dolphin and gives examples (564)
            o But this doesn’t mean that the state is obliged to act where it hasn’t legislated
            o Where the state has chosen to regulate, for example, employee-employer relationship, it’s unduly
                  formalistic to consign that relationship to the private sphere

Application of the Charter to courts and common law
   -    Dolphin proposition that courts are not part of government for purposes of s. 32 has generally been
        ignored
            o Would make Charter rights like right to fair trial difficult o enforce
   -    Courts don’t apply Charter to private litigation, but have followed the notion that the common law needs
        to be applied and developed in a manner consistent with Charter values
   -    Charter will apply to common law when relied upon in litigation involving a government party, or in
        proceedings initiated for a public purpose
   -    BCGEU v. BC (SCC 1988): Charter applied to BC Chief Justice’s injunction against government employees
        picketing a courthouse on the ground that this constituted contempt of court
            o Says this common law branch of criminal law must comply with Charter
   -    Charter applies to common law rules relied upon by the Crown in criminal proceedings
            o Court will reformulate common law rules to make them comply – no issue of competence because
                judges make the common law


   -    Charter doesn’t apply directly, but is still relevant to private litigation that deals with common law
   -    This is discussed in Hill...

Hill v. Church Scientology
    - SCC dismissed appeal from successful defamation claim
Issue

   - Whether Charter applies to common law of defamation
Analysis
  -   that the common law needs to be applied and developed in a manner consistent with Charter values is a
      manifestation of the inherent jurisdiction of courts to modify or extend the common law to comply with
      existing social conditions/values
  -   but there’s still a distinction – private parties can’t base their actions on Charter rights
           o that would be beyond s. 32
           o charter right doesn’t exist without state action
  -   private litigant can only argue that the common law is inconsistent with charter values
  -   far-reaching changes to common law must be made by legislature
  -   s. 1 doesn’t apply to common law rules
  -   party alleging that common law is inconsistent with charter values bears burden of proving this and that
      when balancing these values, the common law should be modified
  -   here, common law of defamation reflected an appropriate balance between competing values




Remedies
  -   What remedies are available to Charter Claimants?
           o s.24: For things which are not laws but do fall under s.32 (i.e. actions of public officials)
                    s. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
                       infringed or denied may apply to a court of competent jurisdiction to obtain such remedy
                       as the court considers just and appropriate under the circumstances.
           o s.52(1): For “laws”
                    52(1) The constitution of Canada is the supreme law of Canada and any law that is
                       inconsistent with the provisions of the constitution is, to the extent of the inconsistency, of
                       no force or effect
  -   Big M: s. 52 available in all cases where constitutionality of legislation is issue and declaration of invalidity
      is sought
           o Also says parties whose right have not been infringed may challenge legislation
  -   S. 24 provides broad range of individualized remedies
           o Declarations of infringement
           o Damages
            o   Injunctions

S. 52 Remedies
Roach, “Constitutional Remedies in Canada”
   - Constitutional remedies involve balancing interests affected by remedy and institutional competence with
        respect to “correcting” a Charter violation – so proper role of judiciary is at the heart of debates about
        remedial purposes and constraints
   - Paradoxical effect of respecting legislative role is inclination to strike down entire laws rather than alter
        them by reading in terms or granting exemptions
   - Preference for declaratory relief rather than specific/mandatory remedies
   - Dialoguing
            o Legislature can respond to ruling with new legislation to be reviewed
            o Courts can invite reply by suspending a declaration of invalidity, allowing legislature to fix the law
Declaration of invalidity under s. 52

    -   Different kinds
    -   Sometimes only part of a law is unconstitutional
            o Partial declarations of invalidity: read down, sever, create exemptions

Schacter v. Canada (SCC 1992)
    - First comprehensive treatment of Charter remedy issues, especially underinclusiveness
Facts

    -   statute doesn’t provide same benefits for adoptive parents as natural parents
Issue

   - Jurisdiction of trial judge to order remedy granted for infringement of s. 15 rights
Analysis

    -  In applying a s. 24 or s. 52 remedy, a court will look at the nature of the violation and the context of the
       specific legislation
   - Purposes of severance and reading in (guiding principles of remedial choice)
           o To avoid undue intrusion into legislative sphere and protect legitimate purpose of the law
                      But may be more intrusive to sever/read in than strike down entire law if “what remains
                         cannot independently survive”
           o Respect purpose of the Charter
Choosing a Remedy under s. 52

    -   1. Define inconsistency of the law – why it violates and why it’s not justified
    -   2. Decide between reading in or severance
            o Precision - harder to obtain with reading in than reading down/severing
            o Interference with legislative objective
                      Budgetary repercussions are relevant
            o Impact on the thrust of the legislation
                      Whether significance of remaining part would be substantially changed (e.g. greatly
                         extending the benefit)
                      If remaining portion is longstanding, consider whether it would be passed even without
                         the unconstitutional portion
    -   Reading in is preferable to suspending declaration of invalidity where appropriate – provides an
        immediate remedy
            o   When reading in, must have regard for “guiding principles” of respect for role of legislature and
                purpose of Charter
            o   Reading in may be inappropriate where it extends a benefit too much
                    but suspending a declaration of invalidity is also intrusive because it forces a specific
                       matter upon the legislature

Vriend v. Alberta (SCC 1988)
    - Deals with s. 52 remedy for unconstitutionally under-inclusive law
    - can’t sever, reading down is not possible – inconsistency with charter is omission
    - No budgetary implications of extending protection – increase in case load, change in mandate at tribunals
        – but size of group isn’t significant
    - No impact on thrust of legislation – purpose was to protect people in the marketplace – reading in
        extends this protection
    - Two objectives of the legislation: protect human rights, exclude sexual orientation from this
    - Considering purpose of the IRPA, reading in preferable to striking down as it would minimize interference
        with the law
            o Purpose is to protect human rights. “Inconceivable” that the legislature would prefer no rights to
                 small extension of rights
    - Court not interfering with legislative process here
            o Oakes: democracy requires minority protection
            o Judicial intervention warranted to correct errors in democratic process here
            o Even if courts read in, legislature can respond with legislation, use s. 33
    - Court says when there are hot button issues which the legislature doesn’t want to decide – it takes a
        position to satisfy one side – invites SCC to fix it
Dissent on issue of remedy (Major J)

    -  Doesn’t like reading in here – deciding how to remedy the IRPA is best left to legislature
          o May prefer no human rights code to one that includes sexual orientation
          o Multiple possible ways of amending the legislation to address the underinclusiveness
          o Not appropriate to read in given legislative opposition
Lawrence

    -   case ought to reveal that even people that feel strongly about the provision can feel very differently about
        the appropriate remedy

M. v. H. (SCC 1999)
Facts

    -   Exclusion of same sex couples from Family Law Act is a violation of s 15 (unconstitutionally underinclusive)
    -   Court strikes down legislation in part and suspends declaration of invalidity for 6 months
            o This is a step back from Vriend
Analysis

    -   Reading in same sex couples not workable – would alter other parts of the Act
             o Because of these wider effects, can’t assume that the legislature would have altered the law in
                 this way
    -   Striking down entire law would be excessive
    -   Severing is best remedy - removing unconstitutional part is possible because what remains can
        independently survive
    -   So court severs the unconstitutional section, but suspends remedy for six months
             o Allows Parliament to craft its own approach
              o   Altering the Act will affect numerous other statutes, and the government may wish to address the
                  validity of those

R. v. Sharpe (SCC 2001)
    - Hunter v. Southam: court reluctant to read in – legislature has responsibility to enact constitutional
        legislation
    - Not so here
    - Read in exemptions to overly broad child porn law
Analysis

    -     Law is substantially constitutional – problematic parts were peripheral (and only hypothetical, i.e. the
          unconstitutional part wasn’t being applied in this instance)
    -     Reading in is appropriate (Schacter):
          1. Where the legislative objective is obvious and reading in would further that objective

          2. Where choice of means of furthering that objective isn’t so unequivocal that reading in would be
          intrusive

          3. Where it would not require intruding into budgetary decisions

    -     Exemptions created here resemble those already created in the legislation and are consistent with overall
          approach of catching child porn while excluding peripheral things protected by free speech
    -     The exemptions here are acceptable because they aren’t at the center of the law – if the core of the law
          has to be exempted the whole is just struck down

S. 24 Remedies
Little Sisters Book and Art Emporium v. Canada (SCC 2000)
     - Majority issued declaration under s. 24 that claimant’s Charter rights were violated because of
         unconstitutional application of a law
     - Didn’t issue remedy that was requested (ie strike down the law under s. 52) because the law itself was not
         found unconstitutional
Facts

    -   Gay bookstore challenged provisions in customs legislation that prohibited obscene publications
             o Empowered officials to determine obscenity, officials “targeted” materials being sent to the store
   - Complainant also requests injunction restraining customs officials from applying the law while there was a
        risk of unconstitutional administration
Analysis

    -     Calling for constitutional behaviour on part of government officials adds little to existing duty to comply
          with the constitution
    -     Further action can be launched if behaviour continues – court has documented that it is unconstitutional
    -     Lawrence: court is saying “come back if there are future problems” – no real protection
Dissent

    -     s. 24 is inadequate
    -     There are grave systemic problems in the administration of the law – calls for a systemic solution
    -     Given the Customs’ history and inadequate response to previous declarations of unconstitutionality in
          lower courts, only striking down the law will guarantee vindication of the appellants’ rights
    -     Legislation should provide for safeguards to prevent rights infringements
Eldridge
   - problem with how legislation is applied
   - No injunctive relief – declaration of unconstitutionality
   - Court directs government as to constitutionality, gives government time to respond
   - Court doesn’t dictate how this should be remedied, but provides hints



Section 1 of the Charter
           a. Section 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set
              out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified
              in a free and democratic society.  need to standardize language (“a right was violated but saved
              by s.1 or not” is totally different); s.1 “saves” the government from remedying the violation;
              doesn’t mean the violation didn’t exist

“prescribed by law”
                   i. Restricts the application of section 1 to particular situations

R. v. Therens
                   ii. Justifications for this rule (rule of law based)
                           1. Laws must be intelligible to the citizen for them to be prescribed
                           2. Accountability: if government restricts rights without law or arbitrarily, it cannot
                                be upheld
                           3. Ex. Police use of force where there was no authorization in law (discretion to
                                public officials might save)
                           4. Vagueness  vagueness can rise to the level of a constitutional problem:
                                overbroad, s.7, or discrimination so poorly confined it can’t be saved under s.1

Oakes Test: What is it, how does it work.
                  iii. First interpretation of s.1  (vague but meaningful generalities) doesn’t apply itself or
                       give much guidance as to how it should be applied

Oakes
                          1. Note that the Court’s role is to protect free and democratic nature of Cdn. Society
                          2. Oakes is a very strict version of the Oakes test: more Court discretion on criminal
                              cases  sets the bar very high for s.1 protection
                          3. Values and definitions: unwritten principles interpreted by the Court
                  iv. Pressing and substantial objective  why do we have this law? Objective
                          1. What has the Court said was pressing and substantial? Not a very high burden.
                              Key test  the objective itself is contrary to Charter values\
                                  a. Sunday closing law: the objective itself is to compel a particular religious
                                      observance contrary to Charter protection of freedom of religion. Not
                                      pressing or substantial.
                          2. Proportionality test  means to achieve objective
                                  a. Rational connection effectiveness
                                  b. Minimal impairment  where most cases fail…if the law infringes the
                                      right more than necessary to achieve the goal, it fails; shifting standard
                                  c. Proportionality between Limit and objective
                   v. What do all these requirements mean in practice/application?
                          1. Pressing and substantial purpose
                          2. Rational Connection/Minimal Impairment
Dagenais
                             a. Proportionality between Limit and objective modified to deleterious v.
                                salutary effects in 
                             b. Publication ban on documentary for trial fairness of those charged with
                                sexual abuse
                             c. shift from comparison of objective and means to effectiveness of
                                means…could they actually achieve this objective
                             d. ban didn’t work…technology would allow anyone to see it…objective was
                                not met despite the fact that it was important

The development of Oakes: Context & Deference
                      3. Trends
                             a. Contextual Approach
                             b. Deference to Elected Legislature
                                    i. What factors increase deference?

Thompson Newspapers
                             c. Ban on publication of opinion polls
                                     i. Bastarache  application of Oakes: different standards of proof?
                                        No, always the same standard, but balancing and context can
                                        make it look easier or harder for the government to meet its
                                        burden
                                    ii. If something is substantial on government’s favor, it will outweigh
                                        other factors, but the same standard applies
                                   iii. If the effect is trivial and the objective important, it may be easier
                                        for government

RJR MacDonald
                                     iv. McLachlin on deference: concern about the extent of
                                         contextualization
                                      v. Amount of proof required from government  stricter burden of
                                         justification
                                     vi. Evidentiary proof should not be lowered
                                    vii. Contests between state and individual vs. mediating competing
                                         interests  this is a competing interests case
                                   viii. Criminal law is usually a no deference situation; but why the
                                         distinction? Even in criminal law the state is balancing interests

Lucas
                                     ix. Intellectual rigor is compromised because judges don’t value the
                                         right being infringed in the case
                                      x. Judges are unimpressed by obscene speech and thus lower the
                                         burden on government for infringement
                                     xi. Scope vs. core of right  when exercise is in core, strict Oakes
                                         test, when it’s outside, less stringent and lower burden
                                    xii. What is the difference between literature and speech and hate
                                         speech?  court uses dislike of speech to justify a lower standard

Forms of Deference
                             d. Where does the deference go? At what stage?
                                   i. Typically at the beginning…
                             e. Where do we afford the deference?
                                           i. Doesn’t apply to last stage (deleterious vs. salutary)
                                          ii. Rational connection (maybe they must only prove some
                                              connection), minimal impairment (obvious)
                                  f. Deference to findings of fact
                                           i. Unlikely to second guess the government’s conclusion if it is at
                                              the heart of the case
                                  g. Deference to accommodation of competing values/interests
                                           i. Political decisions  unless there is a clear legal problem, the
                                          ii. court’s institutional competence does not extend to second
                                              guessing Parliament’s balancing
                                  h. Court should never actually lower the standard below the civil standard
                                           i. Deference is other than changing the standard
                                  i. Cost/benefit analysis  the lower the cost, the less benefit must be
                                     proved; thus the scale looks different every time
                                  j. But no abandonment of burden of proof
                                  k. S.7 requires a two-stage analysis just to find a violation, even before

Supplement: NAPE v. Nfld
                       4. Even where the Court finds a clear equality violation, the government can justify
                           the violation easily by claiming a budgetary crisis
                       5. Women in government service had been systematically underpaid; government
                           agreement to remedy by back pay and gradual pay increases to achieve full pay
                           equity
                       6. Est. cost of settlement portion was $24M and there was a massive cut in transfer
                           payments which constituted 45% of NFLD’s budget
                       7. Huge cutbacks in hospitals, wage freezes, layoffs\
                       8. Government reneged on agreement
                       9. s.15 challenge  NFLD had already admitted that the pay scales were
                           discriminatory
                       10. thus, in rescinding the agreement to remedy the discrimination, NFLD admitted
                           the discrimination
                       11. s.1 analysis was simple: government has asserted a fiscal crisis
                                a. P&S, rational connection
                                b. Minimal impairment  hyper deferential, refuse to even propose any
                                    alternatives even though there were countless options to deal with
                                    problem
                                c. Political problem of budgeting not for the courts
                                d. NFLD CA: off the wall
                                e. That the government could refuse to remedy discrimination on the basis
                                    of a fiscal crisis was novel


Irwin Toy
    Circumstances for consideration under a s.1 analysis where government is shown deference:
          o balancing of competing rights
          o protecting a vulnerable group
          o balancing interests of groups competing for scarce resources
          o some rights violations entail more/less deference
                 s.7 requires a two-stage analysis just to find a violation
                 s.2b requires no work to show violation
          o addressing conflicting social science evidence
            o   note that no deference is given to Crown in criminal law (singular antagonist), but some gray area
                (immigration law)




S. 2(a): Freedom of Religion
Moon, “Secularization of Religious Freedom”
  - Modern justification for protecting FR fundamentally disconnected from many people’s experience of
       religious faith
  - we protect FR because we want to recognize freedom of choice, but for many adherents of religion, this is
       not the way they see religious faith
            o For them, religion is not necessarily a choice, but a command, or something one is born to


    -   S. 15 is equality section
             o It was delayed 3 years from coming into force – gave governments time to fix legislation
    -   In the interim, cases were brought under 2a that might seem better suited to 15
             o This is why SCC cases still deal with 2a
    -   Clear that equality is important in 2a, and also across the charter as an interpretive value
    -   Language in 15 is more complicated than 2a

Sunday Observance
    -   In the following cases, courts consider constitutionality of laws originally promoting Christian Sunday
        Sabbath, but more recently seen as serving secular purpose of creating a common “pause day”

R. v. Big M Drug Mart (SCC 1985)
    - Discusses foundations of FR and how Charter should be applied in general
Facts

    -  LDA made it an offence to do business on Sundays
    -  But, it allow for exemptions via provincial legislation or municipal charter
    -  Big M challenging constitutionality of the Act based on section 2(a) which guarantees freedom of
       conscience and religion
Characterization of LDA

    -  Two possible ways (religious and secular) – or both at once (day of rest, on Christian Sabbath)
    -  Not possible to say LDA has a secular purpose – authorities say it’s religious
    -  In characterizing this act, Alberta concedes this purpose - It had clearly been to impose religious view - but
       says it’s irrelevant, what matters is the legal effect
    - Dickson: both are important. Either an unconstitutional purpose or effect can violate legislation
           o Valid effects can’t save invalid purpose
    - Can’t argue legislation’s purpose has shifted by social conditions
           o Too much uncertainty
           o Incompatible with stare decisis
           o And purpose is a matter of intent at the time of enactment
Freedom of Religion
    -   Free society – accommodates diversity, aims at equality, respects inherent dignity and rights of humans
    -   Essence of FR: right to entertain such religious beliefs as a person chooses, to declare beliefs openly and
        without fear of hindrance or reprisal, and to manifest belief by worship and practice or teaching and
        dissemination(581)
    - A main purpose of the Charter is to protect from coercion and constraint, whether direct or indirect,
        within reason
            o also protects right to manifest religious belief and practice, if any
    - LDA is coercive to extent it binds all to a Christian ideal
    - Also inconsistent with multicultural heritage, contrary to s. 27
            o This Charter shall be interpreted in a manner consistent with the preservation and enhancement
                of the multicultural heritage of Canadians.
    - Purpose of 2(a)
            o Charter should be interpreted purposively (Hunter) – meaning of a right ascertained by its
                purpose/interests it is meant to protect
            o Should be generous rather than legalistic
            o Purpose here found in values underlying our political and philosophical traditions that demand
                freedom of individual judgment/thought, provided they don’t injure neighbour
            o So s. 2(a) makes lords day act problematic for observers of different beliefs and those that don’t
                have/want religious beliefs
Section 1

    -   Not every government objective is subject to s. 1 saving
            o Must be sufficiently significant
    -   Government argues the legislation is justifiable because everyone needs a day of rest
            o But this isn’t the real purpose of the legislation
    -   Unnecessary to go through s. 1 test because the very purpose of the law violates the charter
    -   Case also says government can’t shift purpose to make it acceptable to the Charter if that makes the law
        ultra vires the enacting body
Notes

    -   Corporations don’t hold most charter rights, but if a law is unconstitutional, government can’t enforce it
        against any person (including corporations)

Edwards Books and Art v. The Queen (SCC 1986)
Facts

    - Challenge to ON Retail Business Holidays Act which established a common day of rest for retail workers
    - Four retailers charged for doing business on a holiday
The Legislation

    -  “holiday” includes Sundays
    -  Contains exceptions for grocery stores, gas stations, etc
    -  S. 3(4) exempts smaller retailers that close on Saturdays
    -  Held that its purpose is to provide uniform holidays to retail workers, not to impose religious practice
            o Looks at title and text, legislative debates
Purpose of the law, Law Reform Commission report

    -   The Act has a valid purpose under s. 2(a) because it’s secular
    -   Accused allege the Act is coercive
            o Indirectly burdens those who observe different religious days
            o Compels non-believers to conform to majoritarian religious belief
       - Court says indirect burden can be protected under 2(a) because all coercive burdens are potentially
         protected
             o But they won’t be protected if they are trivial
    - Doesn’t accept argument that the Act compels religious observance – the statutory obligation merely
         coincides with religious observance
Effects...

       -   On non-observers: doesn’t impair 2(a) freedom – effects are secular (ie lost profits)
       -   On Sunday observers: favourable (puts them on equal playing field as those who would otherwise be open
           for business)
       -   On Saturday observers: creates statutory disadvantage by adding an extra day of business closure, thus
           their FR is abridged
               o Similarly burdens Sat-observing consumers
S. 1

       The act is aimed at a pressing and substantial concern
       -
       Rational connection
       -
           o LRC: retail is so competitive that retailers are forced to stay open
           o Retail workers are particularly vulnerable to employers (low unionization, many women)
           o Exemptions are acceptable: importance of different sectors
   - Minimal impairment
           o Exemption for retailers that close on Saturdays substantially reduces impact of the Act on
               Saturday observers
           o But are there alternatives?
                     Right to refuse Sunday work not workable – employers have ability to exert pressure on
                       retail employees
                     Can’t allow exemptions on basis of employee’s religion (they wouldn’t get hired)
                     Interests of employees more important than those of large retail company
                     Can’t have scheme which asks/requires employees to reveal religion
                     So the problem with this scheme is no worse than other solutions
                     When there’s no perfect solution – government chooses
   - Proportionality
           o Infringement not disproportionate to objective because effort was made to accommodate Sat
               observers’ FR
   - Therefore the Act is upheld under s. 1
Lawrence

       -   Government paid more deference if it is attempting to help less advantaged persons, as it is here
               o Employees here are vulnerable day to day, and in context of asserting their rights in the context of
                   their jobs, so if government tries to help them with legislation, it’s not something the court will
                   want to diminish
       -   Defining scope of 2a rights
               o Defined through perspective of rights claimant (as for all Charter rights)
               o But won’t be able to establish violation if impact is trivial
       -   There was an argument by government and dissent that the Act was not the cause of the cost to the
           Saturday observers because they chose to not open businesses on Saturday
               o This is rejected, would not normally be accepted
               o Can’t force someone to choose between profitability of their business and their religious beliefs -
                   this creates pressure not to adhere to religious practice (like in Big M)
March 9

Islamic Schools Federation of Ontario v. Ottawa Board of Education (Ont Div Ct 1997)
    - Held: school calendar that includes Christina but not Islamic holidays doesn’t have religious purpose
        (purpose is to provide secular rest days) and doesn’t infringe FR because under the ON education Act
        Muslim students can be excused from school on holy days
    - Does this square with Edwards Books?
            o Is there not a burden on religious observance for having to miss school?
    - Court says school calendar has to line up with public holidays for practical purposes
            o This may be problematic given that the pause days line up with dominant religious observance
               days
            o Also maybe degrades the dominant religion itself

Freedom of Religion (Supp)
Infringement Test: Syndicat Northcrest v. Amselem (2004 SCC)
    - SCC (5-4) allowed appeal to reverse injunction against Orthodox Jews in Montreal constructing succahs on
        their balconies
    - Canadian Charter not applicable here (private sphere), but Quebec’s is
    - Iacobucci says analysis here applies to all Charter FR cases anyway
Holding

   - FR must coexist alongside other rights, values (property rights, in this case)
   - But here the appellant’s FR is seriously impaired, whereas intrusion on the respondent’s rights is minimal
Analysis

    -   These principles are applicable to both federal and provincial charter cases
    -   Sets out definition of FR from Big M
            o The right to manifest religious belief by worship and practice or by teaching and dissemination
            o Purpose is to allow for whatever beliefs a person’s conscience dictates, provided they don’t harm
                their neighbours or their rights
            o Linked to self-definition, personal autonomy
   - So emphasis is on personal choice of personal beliefs
   - Doesn’t imply that FR only protects beliefs/practices recognized by experts
            o Court should only determine sincerity of belief, not validity
   - Summary of definition in para 46**
   - Purpose of FR from Edwards: to ensure that society does not interfere with profoundly personal beliefs
   - Infringement test (paras 56-61)
            o 1. FR triggered when the individual has sincere religious beliefs
            o 2. Religious beliefs/practices are burdened or imposed on in a manner that is more than trivial or
                insubstantial (emphasis added – rights conflict in real world, not everything is worthy of Charter
                protection)
Application

    -   Regarding argument that the appellants waived their FR rights: “They had no choice but to sign the
        declaration of co-ownership...It would be both insensitive and morally repugnant to intimate that the
        appellants simply move elsewhere”
Notes
GREEN 598
      Peel v. Great Atlantic – upholds amendment that expands common pause day exemptions to include (1)
       municipal exemptions from Sunday closing requirements and (2) permit any retail store to open on
       Sunday regardless of size, provided it was closed for religious reasons on another day
      Islamic Schools Federation of Ontario v. Ottawa Board of Education (ON Div Ct, 1997) held that not
       closing schools on Islamic holidays, but closing on Christmas and Easter did not violate Charter since the
       days off were for secular days of rest and students requiring days off due to Islamic holidays would be
       permitted to
           o The only way to avoid adverse effects of discrimination would be to every holy day of every
                student into a holiday – but this would be invalid since such legislation would provide for religious
                holidays (not secular) and thus atheists etc... could argue that those not affiliated with any
                religious denomination would have a legitimate complaint that right to school calendar being
                sacrificed for religion
           o But school board does have an obligation to take reasonable steps to accommodate Muslims so as
                to undo the harm, namely two days missed from school, caused by discrimination
           o Lawrence: cannot monetize the loss here. Also notes that the decision is based on the idea that
                the school calendar has no religious purpose. But, it is likely based on a Religious Act, and the
                basis for the Act is to create common pause days – thus, to claim there is no religious purpose in
                the calendar is problematic


Religious Freedom and Education
Religion in the Public Schools
Zylberberg v. Sudbury Board of Education (OCA, 1988)
    Facts
          o Regulations enacted pursuant to the Education Act, provided that a public school shall be opened
               or closed each school day with religious exercises consisting of the reading of the Scriptures or
               other suitable readings and the repeating of the Lord’s Prayer or other suitable prayers.
          o In all of the Sudbury Board (S)’s schools, the daily opening exercises consisted of the singing of O
               Canada and the saying of the Lord’s Prayer. At the request of a parent, a child could be excused
               from the classroom or remain in the room and not participate.
    Issue
          o Did opening the school day with the Lord’s Prayer infringe s. 2(a)?
    Arguments
          o Z argued that even with the exemption, peer pressure and class-room norms would impose on
               religious minorities a compulsion to conform to the religious practices of the majority. In
               addition, if there was no religious purpose, then there would be no need for exemptions.
          o S argued that the right to claim an exemption eliminated any suggestion of pressure or
               compulsion on non-Christian pupils to participate in those exercises. Further, the religious
               exercises helped the students confront the fact of their difference from the majority.
    Holding
          o Opening the school day with the Lord’s Prayer did infringe s. 2(a).
    Reasons (Per Brooke, Blair, Goodman and Robins JJ.):
          o Is there a s. 2(a) violation?
                     Do not need to prove harm to pupils for s. 2(a) to be violated
                     Two problems that lead to violation:
                              (1) The right to be excused from class, or to be exempted from participating, does
                                not overcome the infringement on the Charter freedom of conscience and religion
                                by the mandated religious exercises. The exemption provision imposes a penalty
                                 on pupils from religious minorities who utilize it by stigmatizing them as non-
                                 conformists and setting them apart from their fellow students who are members
                                 of the dominant religion.
                              (2) Confronting differences argument (based on doctor who said it would be
                                 healthy for the kids to do so) is insensitive to children and depreciates the
                                 position of minorities, as well as fails to take into account the feelings of young
                                 children (also inconsistent with multicultural nature of society as recognized by
                                 s.27).
            o Can s.1 be invoked to justify Charter infringement?
                     When the purpose of the law itself is directly violative, s.1 is unavailable.
                     However, if s.1 was available in this case: look to s.28 – assume that it was pressing and
                        substantial and rationally connected; fails on minimal impairment
       Reasons (Per Lacourcière J.A. dissenting:)
            o Whether s. 2(a) prohibits all governmental aid to or advancement of religion per se
            o The issue becomes a matter of freedom of conscience: is the state-created opportunity to
                participate in or facilitation of any religious activity an unconstitutional purpose?
                     Law: regardless of purpose, regulation would be invalid if it had an unconstitutional effect
                     Evidence shows that students are permitted to be absent from school to observe religious
                        holidays at their parents’ requests – has not been suggested that a request of this nature
                        raises in the minority students or parents any concern in differentiating them from the
                        majority
            o Held: s.28 of the regulation gave no preference to Christian texts, but that Sudbury’s practice of
                only using Christian prayers violated s.15 and was not saved under s.1
       Disposition
            o Judgment for Z.


Freitag v. Penetanguishene (OCA, 1999)
    Facts
            o Mayor opens city council meetings with Lord’s Prayer
    Decision
            o Violates s.2(a), not justified under s.1
    Reasoning
            o The purpose of the practice, to impose a specifically Christian moral tone on the deliberations of
               the Town Council, contravenes s.2(a)
            o Court recognizes that pressures faced by kids at school and adults at town council meetings are
               quite different. Nevertheless, Court says that just as children are entitled to attend public school
               and be free from coercion or pressure to conform to religious practices of majority, everyone is
               entitled to attend public local council meetings and to enjoy the same freedom


Canadian Civil Liberties Association v. Ontario (Minister of Education) (OCA, 1990)
    Facts
          o Regulation requires that schools devote two periods a week to religious education
          o Provided that clergymen were to come and teach, suggesting that the religious education was to
              be in the Christian faith, rather than many faiths. Material from the instruction would require
              scripture to be memorized and further that salvation comes from Jesus.
    Decision
          o Purpose of the regulation contrary to s. 2(a), so do not look at effects.
           o   Violation of s.2(a) not upheld by s.1 since curriculum does not constitute a limit prescribed by law,
               and the regulation could not be upheld since its true purpose is indoctrination of the Christian
               faith.


Trinity Western University v. British Columbia College of Teachers (SCC, 2001)
GREEN 607

      Facts
           o   Trinity Western University is a private university with a Christian-based curriculum. Students
               would have to sign a document saying that they would refrain from condemned practices. The
               university started a teachers training program and applied to the British Columbia College of
               Teachers for the proper certification. The college rejected Trinity Western on account that the
               school's policy that prohibited "homosexual behavior" violated the college's anti-discrimination
               policy.
      Issue
           o Judicial review case: is BCCT correct in rejected Trintiys application
      Decision
      Reasoning
           o Is Consideration of Discriminatory Practices Within the Jurisdiction of the BCCT?
                  Teachers are a medium for the transmission of values, and thus there is a need for them
                      to understand the extent of diversity in society
                  Statute that grants power to establish standards must be interpreted in light of the
                      general purpose of the statute in particular, the need to ensure that “the fulfillment of
                      public functions is undertaken in a manner that does not undermine the public trust or
                      confidence. Thus, BCCT had jurisdiction to consider discriminatory practices in dealing
                      with TWU.
           o The Evidence of Discrimination: Is TWU discriminating, if so, does it justify BCCT actions
                  B.C.’s human rights legislation accommodates religious freedoms by allowing religious
                      institutions to discriminate in their admissions policies on the basis of religion.
                  How do you reconcile the religious freedoms of individuals wishing to attend TWU with
                      the equality concerns of students in BCs public school system
                  Freedom of religion is not absolute, it is inherently limited by the rights and freedoms of
                      others; although the freedom of belief may be broad, the freedom to act upon those
                      beliefs is considerably narrower
                  Lawrence: the court is drawing the line between belief and conduct. Beliefs which are
                      discriminatory do not necessarily cause problems, but conduct which is discriminatory
                      does
                            However, there is no evidence that any TWU graduate actually exercised
                               discrimination in a public school
           o The Approach
                  (1) Do not weigh one right over another
                  (2) Describe the right in a way that prevents conflict
           o The Solution
                  The Charter must also be read as a whole, so one right is not privileged to the expense of
                      another: Dagenais v. Canadian Broadcasting Corp. The BCCT properly evaluated the
                      impact of TWU's admission policy on the public school environment but should also have
                      determined whether the rights were in conflict in reality. TWU's Community Standards,
                      limited to prescribing conduct of members while at TWU, are not sufficient to support the
                      conclusion that the BCCT should anticipate intolerant behaviour in the public schools. The
                       BCCT failed to weigh the various rights involved in its assessment of the alleged
                       discriminatory practices by not taking into account the impact of its decision on the right
                       to freedom of religion of the members of TWU


Ross v. New Brunswick School District No. 15 (SCC, 1996)
GREEN 615

      Facts
           o   Ross is a school teacher who expressed anti-Semitic views outside of the classroom. He never
               made any anti-Semitic comments in the classroom.
          o HR complaint finds that Ross created a poisoned environment in the classroom that discriminated
               against Jewish students. Ross was then prohibited from publishing his views while employed by
               the school board.
          o This is an appeal by Ross to the SCC
      Decision
          o SCC upheld the order removing Ross from the classroom as a reasonable limit on s.2(a)
      Reasoning (Per LaForest J. for the Court)
          o Kids unlikely to make the distinction between things a teacher says inside and outside the
               classroom. Young kids especially vulnerable to messages from their teachers. So they are likely to
               feel isolated by comments made by the teacher that degrade the group to which they belong.
          o An attenuated level of s.1 is required because the religious beliefs of Ross included those that
               defamed the religious beliefs of others.
          o Rational connection: sufficient for the board to reasonably anticipate a causal relationship
               between Rossès conduct and the poisoned educational environment in the school.
          o Minimal impairment: pivoted on the need to remove Ross from classroom
          o Note: the court did NOT uphold the speech ban as a reasonable limit, concluding that it was not
               reasonable to anticipate that Rossès writings would continue to produce a poisoned atmosphere
               in the classroom once he was in a non-teaching position.


Chamberlain v. Surrey School District #36 (BCCA, 2000)
GREEN 616

      Facts
           o School board refuses to use books for kindergarten and grade 1 that depict same-sex parents.
      Decision
           o Court says the requirement that public schools in BC be conducted upon strictly secular and non-
               sectarian principles dated back to 1867. The Court felt that it was unlikely that the legislators in
               1867 thought that curriculum and other decisions should not be based on religious and Christian
               values.
           o Court says that the school board was not allowed to consider the way that parental religious views
               would be contradicted by the proposed books.
      Aftermath
           o The proposed materials get sent back to the Board. They reject them again, this time on the
               grounds that they are discriminatory (racist) since says Brown in the title.

State Oversight of Private Education
R. v. Jones (SCC, 1986)
GREEN 617
   Facts
        o Thomas Jones was a pastor in a fundamentalist church who did not want his three children
          educated in school and instead was teaching them himself in the basement of the church.
          The Alberta Schools Act requires all parents to send their children to school unless the
          parent can show that they are going to an accredited private school or the government has
          approved the home-school curriculum. Jones was charged with truancy under the Schools
          Act.
   Issue
        o Is Jonesès s.2(a) right violated
   Arguments
        o Jones argued that the rule requiring government approval to educate his children involves
          "his acknowledging that the government, rather than God, has the final authority over the
          education of his children and so contravenes his right to freedom of religion under section
          2(a) and his right to have control over how his children are educated which is protected
          under section 7.
   Reasoning (Per LaForest, Dickson concurring):
       o The Freedom of Religion Argument
                 School Act only calls for compulsory education, not that it has to be in a school, so
                     government does not have absolute control over the education of children
                 However, the appellantès real argument is that his religious beliefs do not allow him to
                     ask for a certificate that he can school his children, since this involves acknowledging that
                     the government, rather than God, has final authority over the education of his children.
                 The requirement that a person who gives instruction at home or elsewhere to have that
                     instruction certified as being efficient is demonstrably justified in a free and democratic
                     society (saved under s.1). So too is a subsidiary requirement that those who wish to give
                     such instruction make application to the appropriate authorities for certification that such
                     instruction complies with provincial standards of efficiency. Such a requirement
                     constitutes a minimal intrusion on religion.
   Reasoning (Wilson J (dissenting)):
       o The School Act accommodates freedom of religion. The legislative objective is to ensure that all
           kids receive adequate instruction. No one is asking the appellant to replace God with the school
           board as the source of his right and his duty to educate his children, they are merely asking him to
           have the quality of his instruction approved by the secular authorities so that minimum standards
           may be maintained in all educational establishments in the Province.
       o Not every effect of legislation on religious beliefs or practices is offensive to the constitutional
           guarantee of freedom of religion. S.2(a) does not require the legislature to refrain from imposing
           any burdens on the practice of religion. Legislative or administrative action whose effect on
           religion is trivial or insubstantial is not a breach of freedom of religion.
                 Application: appellant has failed to show any substantial impacts of this legislation on his
                     belief that God and not the state is the true source of authority over the education of his
                     children.
       o No need to go to s.1 since no substantial infringement on s.2(a), but if there was, would not be
           able to uphold it under s.1 since the government adduced no evidence that having a parent apply
           for a certificate was the least drastic means of ensuring that their children were receiving efficient
           instruction. For example, the legislature could have given education authorities the power to
           inspect on their own initiative.
   Lawrence: why is the need to ask for an exception here treated differently than ZylberbergÉ – me: likely
    because in this case it is the effects of the legislation that are creating the problem, but in Zylberberg is
    was the actual purpose of the legislation.
Wisconsin v. Yoder (USSC, 1972)
GREEN 623

      Facts
           o   Law requires kids to go to school until 16. Amish culture takes kids out of school at 14,
               considering them adults.
      Decision
           o Wisconsin law requiring children to attend school to the age of 16 could not be applied to children
               of the Amish community. Court accepted that compulsory school attendance carried with it a
               very real threat of undermining the Amish community and religious practice
      Dissent (Douglas)
           o Amish children should have been given an opportunity to express their view, and if an Amish kid
               wanted to go to school past 14, and was mature enough to make that decision, then the state
               might be entitled to override the parents religion-based objections. Education is important in
               allowing children to determine their own life course and destiny.

Public Funding of Religious Schools
Introduction
GREEN 624

      S. 93 of the Constitution Act, 1867, gives provinces power to make laws with respect to education, subject
       to certain conditions
           o S.93(1) provides that no law may prejudicially affect any right or privilege with respect to
                denominational schools which any class of persons had at the time of Union – Iacobucci relies on
                section in Adler
      Trinity Western University v. British Columbia College of Teachers (SCC, 2001)
           o Reiterates the view expressed in previous judgements that the protection of separate religious
                schools was a compromise or agreement necessary to bring about Confederation
      Reference re Bill 30, an Act to amend the Education Act (Ontario) (SCC, 1987)
           o Majority finds that Tiny decision was wrong and that “Roman Catholic separate school supporters
                had at Confederation a right or privilege by law, to have their children receive an appropriate
                education which could include instruction at the secondary school level and that such right or
                privilege is therefore constitutionally guaranteed under s.9(1) of the Constitution Act, 1867.”
           o Court also holds that regardless of whether s.93(1) guarantees secondary school funding to the
                separate schools, s.93(3) specifically empowers the provincial government to grant new rights and
                privileges to separate or dissentient schools and that the exercise of this power could not be seen
                as a violation of the Charter


Adler v. Ontario (SCC 1996)
GREEN 626

      Synopsis
           o Whether secularism should be viewed as a neutral perspective that lies outside religious
              controversy or as a partisan antireligious or nonreligious perspective
      Facts
        o   Adler (A) were parents who, by reason of religious or conscientious beliefs, sent their children to
            private religious schools. Their children attended either Jewish day schools or independent
            Christian schools.
   History
        o A challenged Ontario’s refusal to fund religious schools as a violation of their rights under ss. 2(a)
            and 15 of the Charter.
        o The trial judge found that there was an infringement of s. 2(a) but that the legislation was justified
            under s. 1.
        o The Ontario Court of Appeal held that s. 2(a) did not provide a positive entitlement to state
            support for religion and that any infringement was justified under s. 1.
        o A appealed to the Supreme Court.
   Issue
        o Did Ontario’s failure to fund religious schools violate ss. 2(a) and 15 of the Charter?
   Arguments
        o A argued that the requirement of compulsory education infringes their freedom of religion and
            that the failure to fund minority religious schools impose a burden on them not borne by persons
            of other religions or no religion, thereby infringing their freedom of religion and their equality
            rights.
        o The Crown argued that there is no constitutional requirement to provide funding for minority
            religious schools and that the public school system is immune from Charter challenge as it is a
            necessary implication of s. 93 of the Constitution Act, 1867.
   Holding
        o Ontario’s failure to fund religious schools did NOT violate ss. 2(a) and 15 of the Charter.
                  Iaccobucci: s.2(a) not violated. S.93 protects all schools.
                  Sopinka: No violation of s. 2(a) since cost is from religion (slippery slope for funding). S.93
                     only protects Catholic schools, so fair to argue violation of s.2(a).
                  McLachlin: No infringement of s. 2(a). Violation of s. 15 is justified under s. 1. S.93
                     protects only Catholic, so fair to argue s.2(a) violation.
                  LHD: No infringement of s. 2(a). Violation of s.15 is NOT justified under s. 1. S.93 only
                     protects Catholic, so fair to argue infringement of s.2(a).
   Reasoning (Per Iacobucci J. (Lamer C.J.C., La Forest, Gonthier and Cory JJ. concurring)):
        o A. The Appellants’ Claims with Regard to Section 2(a) of the Charter
                  The s. 2(a) claim fails because any claim to public support for religious education must be
                     grounded in s. 93(1) which is a “comprehensive code” of denominational school rights.
                     Section 2(a) cannot be used to enlarge this comprehensive code. Given that A cannot
                     bring themselves within the terms of s. 93’s guarantees, they have no claim to public
                     funding of their schools.
                  To accept the appellants’ claim that s. 2(a) requires public funding of their religious
                     schools would be to hold one section of the Constitution violative of another – Reference
                     re Bill 30 says to avoid this
        o B. The Appellants’ Claims with Regard to Section 15(1) of the Charter
                  The fact that the government funds Roman Catholic separate schools cannot be used to
                     ground a s. 15 claim as that funding is immune from Charter review. The funding of public
                     schools is also protected as a necessary implication of s. 93. Even though public school
                     rights are not themselves constitutionally entrenched, the province’s plenary power to
                     legislate with regard to public schools, which are open to all members of society, without
                     distinction, is constitutionally entrenched and thus immune from Charter review.
                     Although not all legislation in regard to public schools is immune to review, the fact of
                     their existence is immune and cannot be used to ground a s. 15 claim.
                   S.93 defines the extent of the obligations of the province to set up and fund
                    denominational schools when public schools are established. Thus, it is a comprehensive
                    code thereby excluding a different or broader obligation regarding denominational
                    schools, while not restricting the plenary power of the province to establish and fund such
                    other schools as it may decide.
   Reasoning (Per Sopinka J. (Major J. concurring)):
       o With respect to s. 15, disagrees with Iacobucci’s finding that s 93(1) can be interpreted to extend
           constitutional protection to public schools since:
                (a) The historic compromise which is embodied in s. 93 had as its purpose the protection
                    of the religious schools of the minority, primarily Protestants in Quebec and Roman
                    Catholics in Ontario. The Majority schools needed no protection.
                (b) Section 93 makes no mention of protection of the rights and privileges of the public
                    schools
                (c) No decision of this Court or of any other court can be cited to support this proposition
                    and all the authorities support the opposite conclusion
                (d) If s. 93 protects the rights and privileges of the public schools, then all rights and
                    privileges enjoyed at Confederation must be included, There is no basis for concluding
                    that while all rights and privileges of denominational schools are protected, the only
                    privilege protected relating to public schools is funding.
                (e) Entrenching rights and privileges of public schools relative to a benchmark of 1867
                    places the province in a straight-jacket which impedes the progressive reform of
                    educational institutions
       o The Charter – Freedom of Religion
                S. 93 is not a comprehensive code with respect to legislative powers in relation to
                    denominational schools. Yet failure to act in order to facilitate the practice of religion
                    cannot be considered state interference with freedom of religion. The government need
                    not pay for the religious dimensions of spheres in which it takes a role. The cost of
                    sending their children to private religious schools is a natural cost of A’s religion and does
                    not constitute an infringement of s. 2(a).
       o Section 15: Equality Rights
                While it is true that A feel compelled to send their children to private school because of a
                    personal characteristic, namely their religion, and therefore are unable to benefit from
                    publicly-funded schooling, this is not an effect arising from the statute. The reason why
                    the public school system is not acceptable to the appellants lies in its secular nature which
                    is itself mandated by s. 2(a) of the Charter.
                Not discrimination since no private schools receive funding whether they are religious or
                    secular. Nor is religion given preferential treatment within the system. The distinction
                    between private and public institutions is neither an enumerated nor an analogous
                    ground in s. 15.
   Reasoning (Per McLachlin J. (L’Heureux-Dubé J. concurring in the s. 2(a) reasoning)):
       o (1) Is Section 93 of the Constitution Act, 1867 an Answer to the Appellants’ Charter Claim
                Section 93 is not a code which ousts the operation of the Charter. It was not intended to
                    do more than guarantee school support for the Roman Catholic and Protestant minorities
                    in Ontario and Quebec respectively. Provinces exercising their plenary powers to provide
                    education services must, subject to this restriction, comply with the Charter.
       o (2) Does the Failure to Fund Minority Religious Schools Constitute a Limit on the Guarantee of
           Freedom of Religion?
                Burden at issue in Big M Drug Mart and Edwards Books was a state prohibition on
                    business operations which presented religious minorities with the option of either
                    violating their religion by opening on sacred days or suffering financial losses from closing
             – so, there was a state prohibition that put members of minority religions at a
             disadvantage in gaining their livelihood – court concluded that there might be violation of
             freedom of religion
          Distinguish Big M and Edwards: (1) The burden imposed by the failure to fund minority
             religious schools does not involve a state prohibition on otherwise lawful conduct. People
             remain free to educate their children whenever and however they choose, provided they
             meet prescribed standards. (2) Nor has freedom of religion historically entitled one to
             state support of one’s religion.
o   (3) Does the Failure to Fund Independent Religious Schools Infringe the Equality Guarantee of the
    Charter?
          The analysis under s. 15 involves two steps: (1) the claimant must show a denial of equal
             protection or equal benefit of the law, as compared with some other person; (2) the
             claimant must show that this denial constitutes discrimination: that it rests on one of the
             grounds enumerated in s. 15(1) or an analogous ground based on stereotypical
             application of presumed group or personal characteristics
          The essence of s. 15 is that the state cannot use choices like the choice of religion as the
             basis for denying equal protection and benefit of the law.
          While secular schooling is in theory available to all members of the public, A’s religious
             beliefs preclude them from sending their children to public schools. Therefore, they are
             adversely discriminated against by the lack of funding for schooling consistent with their
             religious beliefs and s. 15 is infringed.
o   (4) Is the infringement of Section 15 of the Charter Justified Under Section 1?
          The infringement on s. 15 is justified under s. 1 given the important objective of
             encouraging a more tolerant, harmonious, multicultural society and the fact that the Act
             does not compel attendance at public schools but merely imposes additional burdens on
             parents who choose alternatives to the public school system.
          (i) Rational Connection
                   Connection between denial of funding to independent religious schools and
                      ultimate goal of promoting tolerance and understanding between people of
                      different cultural and religious groups?
                   If fund religious schools, secular schools would become less diverse; the overall
                      effect would be to diminish the multicultural exposure of children in schools,
                      which would diminish the mutual tolerance and understanding of Ontarians of
                      diverse cultures and religions for one another
                   Note: the measure does not have to have proven cause and effect – as long as the
                      legislators can show that they it is not unfair, arbitrary or irrational, it will be held
                      to attempt to achieve its objective
          (ii) Minimal Impairment
                   Considerable deference to government – as long as the measure falls within a
                      range of acceptable solutions to the problem, it will pass the minimal impairment
                      test
                   The measure here was reasonable – too hard to test other hypotheticals that
                      might impair less
          (iii) Proportionality Between the Effect of the Infringing Measure and the Objective
                   Virtually every aspect of human conduct is capable of being the subject of
                      religious belief, It is inevitable that some of the conduct sanctioned or prescribed
                      by religious beliefs will conflict with the legal prescriptions of society or suffer
                      limitation as the state pursues broader goals in the interest of society as a whole,
                      giving rise to a breach of the guarantee of religious freedom or to unequal
                      treatment on the ground of religion
                                Effect of denying funding to independent religious schools is proportionate to the
                                 objective sought. The denial does not violate religious freedom at all, since it
                                 does not compel anyone to violate their religious beliefs in a fashion that would
                                 violate s. 2(a) [Act permits homestudy]
       Reasoning (Per L’Heureux-Dubé J. dissenting):
            o Agrees with McLachlin’s findings that s. 93 does not provide the answer to the appellants’ Charter
                claims and that the failure to fund independent religious schools does not violate the guarantee of
                freedom of religion
            o The denial of funding to independent denominational schools does effect a prima facie violation
                of s. 15. The legislation results in the total denial of the equal benefit of funded education for the
                parents on the basis of their membership in an identifiable group made up of small religious
                communities. The infringement cannot be saved under s. 1 as it is not a minimal impairment of
                A’s rights. Partial direct funding to independent religious schools, as currently provided in five
                Canadian provinces, is a less intrusive measure which might achieve the same objective with less
                of an infringement.
       Disposition
            o Appeal dismissed
       Lawrence
            o All judges agree that there was infringement of the Charter.
       Notes
            o Waldman v. Canada (1999): United Nations Human Rights Committee found that funding Catholic
                schools and no other religious schools breached Article 26 of the International Covenant on Civil
                and Political Rights, the right against religious discrimination – this decision is not binding on
                Canadian domestic law. The problem with this case is that it stands for the proposition that
                Canadian constitutional history does not matter.




Freedom of religion and parental rights
B.R. v. CAS of Metro Toronto (1995)
- Raises interesting question about what 2(a) is protecting, and what the relationship is between
  parents/children.
- Claimants are the infant‟s parents. Infant requires blood transfusion, parents object on the grounds of
  religious belief.
- CAS Procedures taken to take control of the child, administer treatment, then return control to parents.
- Argument of parents is that procedures used (quite formalistic) violated their 2(a) freedom of religion
  (not the child‟s).
- Legislation not directed against Jehovas Witnesses, it‟s just legislation which allows Crown wardship
  in all kinds of possible cases.
Majority of Five: Violation saved by section 1 (LaForest, LHD, Sopinka, Gonthier, McLachlin).
- Holding: Violation of 2(a) which is saved by s.1
- Defined broadly: 2(a) not given limits because they prefer to have the government justify any limits.
  Goes with broad and purposive interpretation of the charter.
- “freedom to choose medical treatment (for their child) in accordance with the tenets of their faith”
- Crucial factual context is that the child will die without treatment.
- At s.1 – law is carefully crafted, not arbitrary. Makes provision for notice to be given, for evidence to
  be called, for time limits to be imposed upon Crown wardship and other orders, as well as for
   procedural protections to be afforded to parents. Therefore amply justified restrictions on parental
   rights.
Minority (4): No violation d/t internal limit on scope of section 2(a)
- Concurring opinion:
       o Would have placed an internal limit on 2(a): freedom ends where religious practices would
           endanger the life of the child. Inherent limit on 2(a).
- Minority doesn‟t want to elevate the choice to deny medical care to a child to the level of
   constitutionally protected right. Reasoning that it‟s a child! Someone else!
- Court feels like it‟s being asked to choose between two individuals: not prepared to say it should be
   dealt with by s.1.
       o If we choose the parent‟s religious right, it effectively ends the child‟s ability to make choices.
       o Reflects a different view of the position of a child: position them as independent being with
           choices being unrealized by age.
- What is the significant of choice in this case?
       o Liberal view of Freedom of Religion depends on the choice of religious beliefs. Significant for
           the court that she has not had the chance to make those choices.
       o But for the rights holder, choice isn‟t a part of it. Tension here?
- Parental freedom of religious limited by 1) harm to another; 2) ending the ability of child to make
   future choices.
- Lawrence: If there is a limit, under what kinds of circumstances does it arise in?
                What about serious psychological stress?
                Where is the line drawn? Internal or external to 2(a).
                Under what factual circumstances?


Cases from the Supplement
Syndicat Northcrest v. Amselem (2004)
-   “sincerity of belief” is the only test for whether something is religiously required in terms of belief or
    practice (no battling theologians in court)
-   Religious shelters in Condo units. Uncontroversial that this decision applies to Charter.
-   Content of belief in practice is bounded by sincerity of belief.
        o Applies irrespective of whether it is required by dogma, or whether bound by religious leader‟s
            direction.
        o Note the clear articulation of a Freedom of Religion test at paragraphs 56-61, page 70 of
            supplement.
-   Court wants to stay clear of dogmatic battles. Inappropriate to call religious leaders to testify...only
    sincere belief „with a nexus with religion‟ is required.
-   Right of condo co-owners to aesthetic beauty and peaceful enjoyment is not a justified limit.
        o Can assume that it would have been possible to limit the right had it given rise to safety
            problems ie. blocking the fire escape route.
Multani
-   Section 1 applied in a freedom of religion case
-   Ceremonial dagger, kurpan, case. Key article of faith; men and boys feel they are required to wear it to
    demonstrate their Sikh faith.
-   Ratio: prohibition on kurpan does violate 2(a).
       o at s.1: minimal impairment test not met in this case. (prohibition not justified)
       o Were allowed to wear kurpan when wrapped up in cloth.
The Hutterite Licence case (Alberta CA)
-  Mandatory photographs for drivers licences, violated sincere Hutterite belief against having your
   picture taken.
- S.1 issue: did government show that mandatory photo requirement was justified? No – at minimal
   impairement govt has a duty to accommodate individual needs up to point where it causes “undue
   hardship”. At proportionality, the risk to Hutterite way of life are significant, risks to government are
   minor by comparison.
The position of marriage commissioners following the same sex marriage case
- Religious right of refusal to perform same-sex marriages. But when accessing a public secular service,
   same sex couples are entitled to non-discriminatory treatment. (balancing s.15, and s.2(a).
- Similar issues arise in the delivery of health care services (doctors, pharmacists, etc).
Bruker:

Should the courts engage in disputes based on religious precepts where there are no civil problems?
-   Jewish religious divorce can only be given by the husband. Without it, remains married according to
    her religious beliefs.
-   At the time of the civil divorce, the husband undertook to grant the get, then never did it. Suing for
    breach of that consent agreement. Husband says it‟s a religious dispute: if you force me to do this, you
    are interfering with my religious freedom.

-   Set alongside Amsellam: doesn‟t want to arbitrate religious disputes. In Bruker, different result to
    similar question. Court holds that it was a contractual undertaking between private actors, and is
    therefore binding.
-   Big issue here is the relationship between civil and religious law, religious and equality protections.
-   What is the court risking by intervening in cases like Bruker. Does it risk the basic secular position of
    the state?
        o Or is it okay for the court to move into zones like Bruker.
-   Majority says that putting it into a legal document has the effect making a religious or moral issue a
    legal one.
        o Concern for the imbalanced or unequal nature of this religious requirement. Women can‟t
            procure their own divorce under religious law.
-   Dissent (Deschamps):
        o Nothing is not religious about this case. Everything the secular law can do for her has been
            done. Everything that remains is her choice. The court should stay out of it.




S.7 – Life, Liberty, Security of the Person
    1. Section 7: Right to Life, Liberty and Security of the Person: Everyone has the right to life, liberty and
         security of the person and the right not to be deprived thereof except in accordance with the principles
         of fundamental justice.
-   Different doctrinal approach: two stage rights analysis.
-   First, claimant must show deprivation of one of the rights, Second, claimant must show that it is not done in
    accordance with POFJ.
         o Wording: “person”  human people only protected, but corporations can still take advantage by
              applying that a law, if applied to a person , would be constitutional. Even though corporation itself
              doesn’t get covered by s.7.
-   Lochner – U.S. case which regulated bakers’ hours.
        o   Raised the issue: is ‘due process’ ( 14th Amendment, U.S.) a procedural or substantive inquiry?
        o   In Canada, it is clear in s.7 that judicial review goes far beyond procedural review and into substantive
            protections.
                 Natural vs. fundamental justice.
                 Natural justice = procedural fairness
                 ‘Fundamental justice’ has been interpreted to go far beyond natural justice.


BC Motor vehicle Reference:
      Creation of an absolute liability offence for driving without a license (while suspended)
          a. The Meaning of section 7 is interpreted in relation to the rest of the Charter
- There are many rights in the Charter which follow s.7, which arguably are ‘under’ s.7.
      o Court holds that these are illustrative of ways in which s.7 rights could be deprived.
      o Also means that protection of s.7 should not be narrower than these, or else it would be pointless.
      o General acceptance that there is clear overlap between s.7 and rights that follow.
          b. PFJ: look in the “…basic tenets of our legal system…the inherent domain of the judiciary as
             guardian of the justice system…”
      o Second part of this phrase does reference concern over confining the court to areas of justice
          administration.
              Doesn’t intend to review everything substantively.

             c. Application in this case?
                        i. LLSOP?
-   Liberty violation.
                       ii. Are the PFJ complied with?
-   PFJ is that ‘the innocent should not be punished.’
                      iii. What about section 1? (violations of section 7 can be saved by section 1 only in cases
                           arising out of exceptional conditions, such as natural disasters, the outbreak of war,
                           epidemics, etc)
-   Fails at minimal impairment. Object could be achieved with strict liability offence. Absoute liability offence not
    required.
-   Most of this s.1 stuff gets ignored later on in other cases.


Section 7 and Bodily Integrity
Morgentaler
LLSOP: Does SOP go beyond “physical control/bodily integrity”?
- Therapeutic abortion law: abortion only where committee decided that health of the woman is at stake.
- Does this violate SOP?
- Court is split on this:
        o Majority: Security of the Person, looks to ‘inviolability of the human body’. Question about whether it
            goes beyond “physical control/bodily integrity”.
                  In this case, because there are criminal justice implications, the court holds that it does
                     interfere with bodily integrity and causes “serious psychological stress”.
                  Also looks through access to abortion across Canada. Delays are/were frequent, can increase
                     stress.
                  So: criminal justice implications, delay, serious psychological stress, leads to level of violation
                     of s.7.
PFJ: Look to structure and practical application of the section
- Court says that the law they’re being asked to apply does not give sufficient clarity.
        o Procedures are so sparse that it not a real defense.
-   Also: there is no real standard that the committee can apply, so they are making arbitrary decisions.
        o “Where parliament creates a defense, it should not be clearly or practically illusory.”
-   Considered not only through the structure of the law, but the actual operation of the law
        o Relatively rare for them to do so.

-   Wilson, Concurring: the reality of these situations is impossible for a male judge to imagine. In addition to
    security of the person, there is a liberty issue as well.
        o Has been cited lots subsequently.
-   Dissent: how is it possible that the court cannot interfere, where the right doesn’t exist? How can the delay,
    etc create a violation when women don’t have the right to abortion in the first place.




Rodriguez
- 5-3 the Court dismissed the appeal with respect to s.241(b) which criminalizes assisted suicide.
- LLSOP: security interest engaged by deprivation of autonomy over person, physical pain and psychological
    stress.
- Zone of choices concerning choices over one’s body, autonomy of the person, SOP engaged at least when
    talking about criminal law prosecution.
- S.15 claim as well: equality problem based on her disability.
- Majority agree, violation is present. Real crux of the case is at PFJ.
PFJ: what are they? P900
         o not just common law rules
         o some consensus that principles are vital or fundamental to our societal notion of justice.
                   Thus removing responsibility from the Court, places it on the public.
         o not too broad: have to be identifiable with precision so as to lead to a result
- can’t say “we must respect human dignity”, no guidance on application in any case. Must have some level of
    precision.
Outcome
- Respect for human life: should prevent allowing people to be encouraged to end their lives in a moment of
    weakness.
- State interest: in promoting the view that human life is valuable, interest in preventing the possibility that life
    will be taken in moments of weakness or vulnerability.
- Court: no societal consensus on the issues in this case.
         o Passive/active euthanasia no consensus by which to resolve this case. Have to be careful not to
             undermine institutions.
- Dissent: disagrees on PFJ.
         o McLachlin: Morgenthaler provides rationale which supports Rodriguez. 241(b) places arbitrary limit on
             R.’s SOP. Doesn’t recognize difference between passive/active, or possibility of someone in her
             position where she just can’t do it by herself.
         o Conclusion on p.905 – has been denied her right not because of her case, but because of her being a
             means to an end. Govt is going to fail at s.1 because prohibition of assisted suicide is not necessary
             given concerns over abuse. Could create possibility for a court order for cases like Rodriguez.
- Quote on 908: both M and R raise significant questions about institutional competence. Government was
    scared to go these places. McLachlin would have changed the status quo in both cases.
Suresh
- Ordered deported to Sri Lanka because of fundraising for Tamils. Challenged it both on procedural and
   substantive grounds. Evidence that Sri Lanka engages in torture, particularly with Tamils.
- Court accepts that these are grounds for s.7 claim.
- Is there a “sufficient” connection between Canada’s action and the deprivation of life, liberty or security?
- Says as long as there is a sufficient connection between Canada’s actions and torture of Mr. Suresh. There is in
   this case.
- Where it is a necessary precondition for deprivation. Everyone agrees s.7 SOP has been violated in this case.
   However, must show it has not been in accordance with POFJ.


What are the PFJ? Consider from the Canadian perspective and from the international perspective
- S.1 is balancing means and ends.
- At PFL balancing is different: the relevance and choice of PFJ depends on the nature of the particular right
  being violated.
- In this case, at PFJ stage, look to protecting public security here, anti terrorism, but on the other side a
  commitment to constitutional protections and rejection of torture.
- Context: Death penalty previously held to be per se disproportionate.
- Holding: Virtually categorical rejection of state-sponsored torture in international norms will almost always
  outweigh considerations on the other side, but has to be applied on a case by case basis, as opposed to
  extradition to death penalty which is categorically rejected.
       o So you CAN be deported to torture by Canadian state in exceptional circumstances.
- Procedural protections: refugee must be able to respond in writing, to challenge evidence, must be able to
  speak about the risk of torture faced, and speak to whether continued presence in Canada is detrimental to
  Canada, to speak about risk of torture, the value of assurances that he won’t be tortured upon return, must
  be granted written reasons by the minister as to why his decision is what it is.




Charkaoui v. Canada (Citizenship and Immigration) (supplement)
- About security certificates. Struck them down.
Liberty, Security of the Person
- Liberty violated, as it provides for 120 days detention upon certificate being granted.
- Going to consider SOP dimensions, but they are not at the core of the issue, just relevant.
What PFJ are implicated?
- Confirms that at the PFJ stage, we are balancing again.
- Just because there is “national security” raised, not going to abandon charter rights. Agrees that security
    interests could be balanced, but invoking it will not give a free pass.
         o Must show us that some effort has been made to respect rights.
- Exigencies of the security process confidentiality/secrecy and speed of detention without review.
         o Named person doesn’t know the extent of the case against them. (PFJ).
- Before the state can detain people for significant period of time, they need to have fair judicial process,
    involving:
         o 1) right to a hearing 2) right to independent and impartial magistrate 3) ability to rely on magistrate
            making reasoned decision on facts and the law 4) right to know the case. 5) Right to answer the case.
- Court found a violation which is not in accordance with PFJ.
Section 1 Analysis
- Already going to be hard given PFJ will have been found . Not a changed standard, but rather a violation has
    already been found, so violations of s.7 are not easily saved by s.1. May not be impossible, however,
    particularly in extraordinary circumstances where concerns are grave and the challenges complex.
What evidence helps the court conclude that the right is not minimally impaired?
- Facts looked at: previous regime; other western democracies’ approaches (the UK has an acceptable
  alternative)
- These alternatives suggest that the IRPA regime, which places on the judge the entire burden on protecting
  the person’s interest, does not minimally impair the rights of non-citizens, and hence cannot be saved under
  s.1.
- Result: 1 year suspension on declaration of invalidity.




Life Liberty and SOP: Human Dignity
-   Very broad legal concept that has been called “judicial lego-land”. Judges can build whatever they want out of
    it.
-   Beyond bodily integrity, criminal law context.
        o How far do we want to take s.7 protections of personal autonomy decisions of “fundamental human
            importance”

Parental Liberty?
B.R. v. CAS of Metro Toronto (1995)
- Claim that 2(a) and s.7 grant the parent the freedom to deny treatement to their child.
- 4 judges find violation of s.7, but was done in accordance with PFJ.
        o “Liberty includes personal autonomy to live our own lives and to “make decisions of fundamental
           personal importance”.
- Parental liberty interest in caring for a child and making decisions for it.
        o Not a property interest, but a protected sphere of parental decision making.
- Wardship hearing engages parental liberty interest.
        o In accordance with PFJ?
                 Yes: Notice is given, a hearing is conducted, can present alternatives, burden lays on the
                    CAsociety to prove that it is in the best interests of the child are served by removingthe child
                    from the parents.
        o Iacobucci and Major argue that there may be a parental liberty interest but it stops where the parent
           tries to deny necessary medical treatement. Not all individual activity is an exercise of liberty.
                 Clear limit: If your activity is an attempt to deprive others of their own good or their efforts to
                    pursue good, those efforts will not be protected as an exercise of their liberty interest.
        o Seems perverse to recognise liberty interest where it is going to infringe on a child’s life.
                 WOULD BE USING THE CHARTER TO DIMINISH PROTECTIONS FOR VULNERABLE GROUP
                    (children).
                 Internal limit required.
        o Lamer: should keep liberty at the physical level, doesn’t agree that it should be invoked in this kind of
           case at all. Remember he’s the criminal law expert.

G(J):
- NB was not providing assistance to people in the position of G(J).
- Argument is that her liberty and SOP are at risk.
LLSOP: moving outside the traditional zone?
- Whenever state action has serious and profound affect on a person’s psychological integrity, LLSOP is raised.
    There is a fundamentally important parental interest in raising and caring for a child.
-   Objective test is required. Looking for extraordinary stress and anxiety.
        o State removal from custody, even if not permanent would be of this order.
        o Not every state interference with parent/child relationship will raise LLSOP.
-   Custody hearing itself is right in the zone of the administration of Justice.


PFJ: Fair procedure
- Must be met in this case. Encompasses protection of parent, requiring effective participation in the
    proceeding (parent has critical facts). Concludes that a lawyer is necessary, and the state needs to provide
    one.
- Takeaways:
        o Seriousness of the potential impact on the parents.
        o Complexity of proceedings  akin to criminal proceedings in terms of adversarialism.
        o She didn’t have “superior intelligence or education, communication skills, composure, a familiarity
            with the legal system in order to effecively present her case.”
                 Narrows the scope of the govt’s obligation to provide lawyers.
                 How far should the decision go?
                         Lawrence: when are people going to have these qualities?? She thinks rarely.
Section 1
- Pressing and Substnatial Objective: controlling legal expenditures
- Rational Connection, and minimal impairemnt are present.
- Final balancing of deleterious/salutary effects:
        o Deletrious: not just on G(J), but on the broader impact of conducting judicial proceedings that are
            fundamentally not fair.
                 If wrongly decided,these decisiosn are hugely significant for the individuals involved.
        o Lawrence:
                 These child protection proceedings primarily involve women, had never been recognized as
                    engaging simliarly important interests. (most legal aid recipients are male)
        o Further reason to extend: is it gender bias underlying the kind of provisions legal aid makes?
        o Not at the centre of it, but interesting to think about....

-   Court decision MAKES GOVT OPEN THEIR WALLETS/MAKE CUTS ELSEWHERE. Enforcing a positive obligation
    on the state.


Blencoe: The limits of L/SOP protection outside the criminal law
- Issue of delay in human rights proceedings.
- 2 sexual assault complaints laid against Blencoe in 1995, heard in 1998.
       o In the intervening period – he’s a pariah, political hot potatoe, though he refutes the accusations.
       o Trying to argue that there is a kind of problem as in G(J)  state interference with bodily integrity and
           serious, state-imposed psychological stress.
- Court: No inteference with LLSOP.
       o State imposed? Not really media and the public, not the state.
                Harm to reputation had occurred prior to filing.
                Not really the responsibility of the state
       o Dignity is not a free-standing protected value related to control over one’s body and fundamental
           personal choices.
       o No right to be free from the stigma of a human rights complaint from s.7 (maybe elsewhere, but not
           from s.7).
- Useful case for delineating boundaries, showing how far the court is willing to go.
Section 7 and Litigation of Poverty
-   No clearly articulated social and economic rights in the Charter.
-   S.7 is a door to start looking at state obligations. In general, the court shuts the door. Court: Rights may exist,
    but they aren’t justiciable, either because they lack the institutional legitimacy to do that, or because the
    nature of social and ecnomic rights are imprecise – renders them injusticiable.

Gosselin
- Facts are bad. Framed as a damages claim for 388 million dollars. Quebec welfare was cut for people under
    30. If those people attend job-training, you get bonus increments. If you just sit around, you get 170/month
    which amounts to a 1/3 of the regular benefit.
- As a result of only having this money, she lived a life of deprivation, prostitution, ill-health.
Claim on SOP
- Claim is that a certain level of social assistance is required for Security of the Person.
- Not like Ontario where it cut rates for everybody. Only for people under 30.
Requirement of “state action implicating the administration of justice”
- Where is the involvement of the administration of justice? Chief Justice refused to say that it is limited to
    adjudicative contexts. Administration of justice is not implicated in this case, though. Instead, it is just an
    economic rights claim.
- Decision leaves the door open to enforcing positive obligations, but the “frail platform provided by the facts of
    this case cannot support the weight of a positive state obligation of citizen support.”

Dissent from Arbour J.
- not economic rights but basic health and survival. Different way of conceptualizing the issue here.
- Right to minimum level of social assistance isn’t about economic rights or property rights but about basic
    health and survival. No reason that s.7 cannot protect positive obligations.


Justiciability issues
- The claims can be addressed without addressing the question of how much expenditure by the state is
    necessary in order to secure the right claimed, a question which may not be justiciable.


Wiseman article
Implications of courts generally avoiding these issues?
- Political de-legitimization. “we’re not talking about them” = “no”
International obligations
- Covenant on International Social and Economic rights
        o In periodic reviews, the remarks are that you don’t take these rights seriously, Canada!
        o If courts took it seriously, it would be a serious policy weapon.


Banks
Claim on SOP
- Prohibition on squeegeing causes serious psychological stress and denies the necessities of life because they
    could not otherwise obtain employment, it was a matter of self-preservation.
“Economic Rights claims”
- “the appellants have failed to establish that this is not in accordance with principles of fundamental justice as
    the provisions are neither vague, not overbroad.”
- They could just squeege in a parking lot!
Chaoulli
- Claim is that prohibition on insurance for private health services, combined with wait times for public services,
   violated their s.7 rights.
- Deschamps: (Based on Quebec Charter)
       o Life and SOP engaged because of delay (a la Morgenthaler)
       o Moved on to s.1.(s.9.1 in the Quebec Charter)
       o PSO: alleged is to preserve integrity of public system. Two-tier system deteriorates public system.
       o Minimal impairement:
                 “the effectiveness of the prohibition has by no means been established. The government has
                    not proven, by the evidence in the record, that the measure minimally impaires the protected
                    rights. Moreover, the evidence shows that a wide variety of measures are available to
                    governments, as can be seen from the plans of other governments and other countries.
- McLachlin and Major (Bastarache concurring)
       o Concur with Deschamps’ conclusion, but decide the case on the basis of the federal Charter.
       o Agree that the prohibition, combined with long waits for services violates s.7.
       o Fails at s.1 too.
                 “where the government chooses to act, it must do so properly” (quoting Morganthaler)
- Dissent - Binnie, LeBel – Fish concurring
- Main point: don’t think the issue is appropriate to the court. Whether to provide need based/wealth based
   healthcare is a legislative choice, and cannot be considered ‘arbitrary’.
       o Majority made noise about waiting lists being long, but weren’t specific about what exactly was
           needed.
- Dissent also differs in that they believe that the court finding will create a two-tier system. Court shouldn’t
   have their fingers on this at all.
       o Institutional competence!
- Wrt s.7, also argue that there is a wide gap between the impugned provisions and the proper zone of s.7.
       o Recall: proper zone of s.7 is within administration of justice system.
       o Dissent: serious problem with establishing violation of PFJ.
                 Have to be fundamental, consensus. Nothing about waiting lists that meet these criteria.
                 Even if we were to accept that there is a liberty, or SOP problem, doesn’t automatically offend
                    a PFJ.
                 Concern that the court has meddled in the fundamental policy choice underpinning the health
                    care system.
                 Court’s role is on a case by case basis, not where it will be making policy choices, with
                    uncertain effects (of the ability to buy private medical services).
Section 15: Equality Rights
S.15 Text:
      (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.

The Idea of Equality
Lawrence Overview
      Everyone, regardless of rank or class, is subject to the same law
      State can only do what it is permitted to do by law (Roncarelli)
      Equality and civil rights – everyone has the equal light to sue and be sued
      All of these are about the operation of the law – not about the content of the law


M. Schwarzschild, “Constitutional Law and Equality” (1996)
GREEN 787

      Introduction
           o Whatever the ways people might be equal or unequal, they can be treated equally/unequally in a
               variety of ways
           o Absolute equality: the same for everyone, regardless of what is thought to be deserved or
               otherwise proper
           o Proportional equality: the same for everyone according to what is deserved or otherwise proper
           o Absolute equality and proportional equality are sharply different:
                    Ex. honors or possessions or prison sentences for all vs. honors or possessions or prison
                        sentences according to a scale of who deserves them
      The Enlightenment and Its Antecedents
           o Enlightenment thinkers put a high value on the individual, endowed as a person with natural
               rights
           o Life’s happiest outcome is to achieve enlightened reason, and hte Enlightenment accepted that
               people’s capacities for this are unequal.
           o Trying to ensure equal human happiness would mean that people could not pursue their own
               ideas of happiness: there would have to be a collectively imposed definition of happiness in order
               to administer an equal distribution of it
      Liberty and Equality Under the Constitution
           o Respect for equal rights entails respect for the unequal outcomes produced by the exercise of
               equal rights
           o Dissatisfaction with Enlightenment idea since its idea of equality carries the seends of many of the
               political and philosophical objections raised against it


W. Black and L. Smith, “The Equality Rights” (1996)
GREEN 789

      Comparison of People and Groups
          o There must be another person or group that the claimant is to compare themselves to (choosing
             comparator group can be difficult)
            oChoice of comparator in equality claims strongly influences outcome
            oGroup membership is what grounds a claim to equal or unequal treatment: take account of the
             disproportionate impact of a rule on a group, even though the provision does not affect every
             member of the group and bears only on a statistical correlation with group membership
      Comparisons of Treatment or of Consequences
          o Significant core notions of what equality means: the same rule applied across the board may
             produce different outcomes for different groups
                  Canadian Equality does not require the same rule to apply to everyone, but under the
                      notion of formal equality, the same rule has to apply to everyone
                           Formal equality – contrasted with notion of substantive equality – there is
                               recognition that Cad does not create level playing field
                           Substantive equality – notion that we are thinking about the fact that people have
                               different starting points
                  Substantive equality suggests that in providing equality – we need to think of situations of
                      where 1 rule does not apply to everyone; but also think about how the same rule applied
                      has different effects
                  Different views/definitions for equality (GREEN792)
                           (1) A law or policy which intended to remove conditions of subordination or
                               disadvantage
                           (2) Creation of conditions for self-fulfillment
                           (3) Inclusion and participations
                           (4) Equal concern and respect


W.S. Tarnopolsky, “The Equality Rights” (1982)
GREEN 793

      Equality Before the Law in United Kingdom Constitutional Law
          o Equality is a fundamental principle of the RoL
          o Per Frank Scott (Roncarelli’s lawyer) – RoL includes equality before the law – two basic rules
               underlying our constitutional structure
                    (1) Private individual may do anything he pleases (freedom is presumed; all restrictions
                        are exceptions)
                    (2) Authority of the state is opposite from the private individual: the public officer can do
                        nothing in his public capacity unless law permits it (incapacity is presumed; authority to
                        act is an exception)
          o However, this view of “equality before the law” basically restricts it to a procedural concept
               relating only to the even-handed operation of the legal system in its application and enforcement
               of the law

Section 15 and Substantive Equality
W.S. Tarnopolsky, “The Equality Rights in the Canadian Charter” (1983)
GREEN 795

Regina v. Drybones (SCC, 1970)
           o Held [based in Canadian Bill of Rights]
                   A federal provision contravened the “equality before the law” clause and was therefore
                     inoperative
                   Provision in the Indian Act which made it an offence for Indians to be intoxicated off a
                     reserve contravened the “equality before the law” clause, and gave that clause the
                       following meaning: “I think that s.1(b) means that at least no individual or group of
                       individuals is to be treated more harshly than another under that law ... an individual is
                       denied equality before the law if it is an offence punishable at law, on account of his race,
                       for him to do something which his fellow Canadians are free to do without having
                       committed any offence or having been made subject to any penalty

Lavell (SCC, 1974)
           o Within the text of the law it is applicable that Indian women are treated differently than Indian
               men since inequality of treatment between Indian men and women flows as a necessary result of
               the application of s.12(1)(b) of the Indian Act
           o Rejects America egalitarian conception for s.15


P. Hughes, “Recognizing Substantive Quality as a Foundational Constitutional Principle (1999)
GREEN 799

      Goes over the notion that formal equality (“like should be treated alike”) is seen as a thin understanding
       of equality
           o This can lead to the kind of subordination and segregation that occurred under Jim Crow laws
      Substantive equality – tries to take some account of the context in which law is going to be applied –
       recognizes that because there are differences in privileges, it is not enough to assume law operating on
       level playing field
           o “substantive equality acknowledges that mainstream (“dominant”) values, institutions and
                experiences are not always the most appropriate way to organize that society or to organize it for
                all its members. Substantive equality is about disassembling the norm
      Need to produce equality of outcome? – Lawrence: probably not; but need more than equality in
       application
      Formal equality is much simpler to apply – difficult for people to agree on what substantive equality is
      What is it that s.15 is trying to prevent? Differentiation among people? Disadvantage to individuals?
       Ongoing systems of subordination?
           o These are different aspects that people think are significant – but we don’t have great
                explanations of precisely what SCC thinks s.15 is
      Key distinction: is it about differentiation or subordination?
           o Subordination – concerned with background prejudice (more likely substantive approach)
      Author suggests that touchtone of equality is moral worth
           o Lawrence: thinks that this notion of moral worth is not going to be translated into a bright-line
                test
      Author also critiques the current approach since current approach requires that to be covered by the
       Charter, the inequality has to premised on a fairly narrow range of identity and descriptive grounds
           o Problem: narrow range may not recognize new things
                       Also law has not dealt well with cases where the alleged discrimination is on multiple
                         grounds

Early Interpretation and Application of s.15: The Andrews Test and the 1995 Trilogy

Andrews v. Law Society of British Columbia (SCC, 1989)
GREEN 804

      Facts
        o   Andrews, a Oxford educated British man, permanently resident in Canada, met all the
            requirements for admission to the provincial bar with the exception that he was not a Canadian
            citizen. Andrews brought a motion to strike down the requirement for citizenship on the grounds
            it violated s. 15 of the Charter.
   Issue
        o Does the bar requirement violate s.15?
   Decision
        o Appeal allowed. The citizenship requirement violates s.15.
   Reasoning (Per McIntyre (Lamer Concurring) dissenting on s.1):
        o Reject Similarly Situated Test: “things that are alike should be treated alike, while things that are
            unalike should be treated unalike in proportion to their unalikeness.” This test cannot be the
            fixed rule since consideration must be given to the content of the law, to its purpose and to its
            impact upon those to whom it applies and excludes.
        o The Concept of Equality
        o Equality is a comparative concept, the condition of which may only be attained or discerned by
            comparison with the condition of others in the social and political setting in which the question
            arises. It must be recognized at once, however, that every difference in treatment between
            individuals under the law will not necessarily result in inequality and that identical treatment may
            frequently produce serious inequality.
        o A law expressed to bind all should not because of irrelevant personal differences have a more
            burdensome or less beneficial impact on one than another.
        o Purpose of s.15: to ensure equality in the formulation and application of the law. This entails the
            promotion of a society in which all are secure in the knowledge that they are recognized at law as
            human beings equally deserving of concern, respect and consideration.
        o Further, equality rights do not preclude any law, program or activity that has as its object the
            amelioration of conditions of disadvantaged individuals or groups.
        o Note: if the Charter was intended to eliminate distinctions, then there would be no place for s.27
            (multiculturalism), s.2(a) (religion and conscience), s.25 (aboriginals)
        o Discrimination
        o A distinction based on grounds relating to personal characteristics of the individual or group,
            which has the effect of imposing burdens, obligations, or disadvantages on such individuals that
            are not imposed on other groups, or which withholds or limits access to opportunities, benefits,
            and advantages available to other members of society.
        o No intent is required to discriminate, instead the impact of the discriminatory act or provision
            upon the person affected is decisive.
        o Test: Enumerated and Analogous Grounds
        o Consider the effect of the impugned distinction or classification on the complainant.
        o A complainant must show not only that he is not receiving equal treatment before and under the
            law or that the law has a differential impact on him in the protection, but also must show that the
            legislative impact of the law is discriminatory.
        o Any consideration of factors that could justify the discrimination would take place in s.1.
        o Application: the distinction between permanent resident and citizen in the act imposes a burden
            in the form of some delay on permanent residents who have acquired all or some of their legal
            training abroad and is, therefore, discriminatory. The distinction denies admission to the practice
            of law to non-citizens who in all other respects are qualified.
        o A rule which bars an entire class of persons from certain forms of employment, solely on the
            grounds of a lack of citizenship status and without consideration of educational and professional
            qualifications infringes s.15.
        o S.1 (dissent)
                      Relax Oakes test because s.15 is broad and should not unduly hinder government from
                       making distinctions that are an unavoidable aspect of governing. Favours upholding
                       violations of equality rights if governments are pursuing sound objectives in a reasonable
                       manner.
      Reasoning (Per Wilson J):
          o Noncitizens should have access to s.15 since they are a “discrete and insular minority” vulnerable
              to having their interests overlooked in the legislative process.
          o Given that s.15 is designed to protect those groups who suffer social, political and legal
              disadvantage in our society, the burden resting on government to justify the type of
              discrimination against such groups is appropriately an onerous one.
          o Do not need to grant the government deference at this stage since s.15 claims was already
          o There is a PSO but s.1 fails since citizenship requirement not tailored to the objective of ensuring
              that candidates for admission to the bar had a sufficient understanding of, and commitment to,
              Canadian institutions.
      Reasoning (Per LaForest J):
          o Citizenship should be treated as an analogous ground of discrimination since (a) citizenship is
              immutable or beyond control of the individual and (b) citizenship is generally irrelevant to the
              legitimate work of government and to the assessment of an individual’s ability to perform or
              contribute to society.
      Lawrence
          o Either you have substantive knowledge or you do not; being a citizen is not indicative of that.


Notes: The Implications of Andrews
GREEN 809

      (1) Andrews stands for a number of principles:
            o (a) Equality cannot be reduced to sameness of treatment: equality sometimes requires that
                differences be taken into account. Also, laws that are facially neutral may be discriminatory in
                their impact.
            o (b) Rejection of similarly situated test (formal equality) for interpreting s.15. Equality cannot be
                reduced to a requirement that laws be framed rationally and administered consistently.
            o (c) The actual effects of the challenged law or practice should be the focus of the analysis (intent
                to discriminate not required.
            o (d) For a violation of s.15 to be found, the claimant must establish that differential treatment that
                amounts to discrimination on the basis of a personal characteristic that is either listed as a
                prohibited ground of discrimination or that is analogous to a listed ground.
            o (e) A personal characteristic will be accepted as an analogous ground if it shares the essential
                features of the personal characteristics listed in s.15.
      (3) “Discrete and insular minority” was coined to describe the social conditions of groups that made them
       vulnerable to prejudices of those in power. However, vulnerable groups may also be diffuse and difficult
       to identify.
      (4) Andrews limited s.15’s role to combating the most socially destructive forms of discrimination, those
       based on the listed grounds of discrimination. Thus, s.15 closed its doors to challenges based to allegedly
       arbitrary or irrational laws making their way through the courts at the time (needed to be a link between
       the laws and the personal characteristics associated with disadvantage)
      (5) Lavoie v. Canada (SCC, 2002):
            o Facts: involved challenge to a federal law that gave preferential treatment to citizens in
                competitions for federal public service jobs.
            o Decision: 6-3 majority finds no violation of s.15.
            o    Majority (Bastarache): upheld law under s.1, taking an approach similar to Wilson J’s “onerous
                 test” from Andrews. Objective of the law was held to be to enhance the meaning of citizenship as
                 a unifying symbol and encouraging permanent residents to take out citizenship. Bastarache says
                 that deference to Parliament’s ability to assess competing policy decisions was appropriate
                 “particularly given the delicate balancing that is required in this area of law”
            o Majority (Arbour and Lebel): no violation of s.15 per Law test since a reasonable person would
                 not consider the partial and temporary difference of treatment in employment opportunities to
                 violate the human dignity of noncitizens. Arbour argued in favour of a narrow understanding of
                 discrimination and a s.1 analysis conducted with “uncompromising rigour.” A deferential s.1
                 analysis risks depriving s.15 of all its content.
            o Dissent (LHD, McLachlin): citizenship preference violates s.15. S.1 analysis should be onerous, as
                 Wilson J described it. Cases of justifiable discrimination should be rare.
       (6) Andrews failed to articulate the purpose of equality rights. In R. v. Turpin, it was suggested that s.15 be
        examined in the wider social, political and legal contexts: purpose of s.15 was to remedy or prevent
        “discrimination against groups suffering social, political and legal disadvantage in our society.” Concern
        that this approach would make s.15 unavailable to men since they are not disadvantaged. (R v. Hess and
        Weatherall v. Canada are two cases where the SCC held that differential treatment based on sex did not
        violate the Charter)
            o Weatherall v. Canada (female prison guards)  equality does not necessarily connote identical
                 treatment and, in fact, different treatment may be called for in certain cases to promote equality.
                 Historical trend of violence perpetuated by men against women is not matched by a comparable
                 trend that indicated men are victims and women are the aggressors. Even if s.15 rights were
                 violated, LaForest said the violation would be a reasonable limit on equality rights of the male
                 inmates, since hiring women as officers in male penitentiaries promoted inmate rehabilitation,
                 security and employment equity.
            o Lawrence: summarizes the allowance of differential treatment of men and women under s.15
                 based on the ideas that there are historical, biological and sociological differences between men
                 and women.


The “Equality Trilogy of 1995”
       Introduction
            o Andrews test rejected as standard. Court separates into 3 camps.

Miron v. Trudel (SCC, 1995)
           o Summary: (5-4 majority) denial of automobile accident benefits to an unmarried opposite-sex
              couple constituted discrimination on the basis of marital status, contrary to s.15. Discrimination
              could not be justified by s.1. Dissent recognizes that there is a distinction, and argues that it is
              required in order to promote the stability of children (married household less likely to split).

Egan v. Canada (SCC, 1995)
          o Summary: (5-4 majority) denial of old age spousal allowance to same-sex couples did not violate
             Charter. The monthly benefit could be claimed by persons 60-65 so long as widowed or spouse
             (of opposite sex) of old-age pensioner. Egan and partner (gay) lived together for 40 years but
             partner denied benefit since gay. 5 say discrimination based on orientation, however legislation
             upheld since Sopinka from the 5 passed it under s.1.

Thibaudeau v. Canada (SCC, 1995)
          o Summary: dismiss challenge to rules that permit parent who paid child support to deduct it from
              income, while parent receiving it had to add it to income. Dismissed since the scheme confers a
              benefit on the post-divorce family unit. Dissent (LHD, McLachlin) find violation of s.15 since the
             Income Tax Act imposed a disadvantage upon a significant proportion of (mostly female) custodial
             parents (when get to situation where woman and man making same amount, then have women
             disproportionately bearing taxes).
      Approaches that Emerged
          o (1) Andrews Approach: [prevailed in Egan but lost in Thibaudeau] look for differential treatment
             on the basis of a prohibited ground that has the effect of imposing a real disadvantage in the
             social and political context of the claim. Overall purpose of s.15 is the prevention of the violation
             of human dignity and freedom by imposing limitations, disadvantages or burdens through the
             stereotypical application of presumed group characteristics rather than on the basis of individual
             merit, capacity or circumstance.
          o (2) New Layer to Andrews: 4th requirement – the personal characteristic at issue must be
             irrelevant to the functional value (ex. marriage) underlying the challenged law.
          o (3) LHD Alone: focus on grounds of discrimination should be abolished. Instead, the analysis
             should focus on the nature of the group and the nature of the interest adversely affected by the
             challenged law. The more vulnerable the group, and the more fundamental the interest, the
             more likely that a difference in treatment will be discriminatory.

The Law Test
Law v. Canada (Minister of Employmeny) (SCC, 1999)
GREEN 816

      Facts
           o   The Canada Pension Plan provides survivor’s pensions to a surviving spouse whose deceased
               partner has made sufficient contributions to the CPP. A claimant who is over the age of 45 at the
               time of the contributor’s death, or is maintaining dependent children of the deceased contributor,
               or is disabled is entitled to receive the survivor’s pension at the full rate.
           o   The pension for able-bodied surviving spouses without dependent children is reduced for spouses
               between the ages of 35 and 45 while spouses who are under 35 cannot receive a survivor’s
               pension until they turn 65.
           o   Law (L) was 30 years old when her husband died. He was 50 and had contributed to the CPP for
               22 years. The couple had no children and had owned a small business which was dependent upon
               the husband’s technical knowledge and expertise. The business failed soon after his death and L’s
               request for survivor’s benefits were denied as she was under 35 at the time of her husband’s
               death.
      Issue
           o   Were the age restrictions on survivor’s pensions an infringement of s.15 that failed to be saved by
               s.1?
      Arguments
          o L argued that age was not a good proxy for either short-term need or long-term need and that
               apportioning CPP survivor’s pensions on the basis of age was a violation of s. 15(1).
          o Canada argued that the assumptions underlying the impugned CPP provisions concern, not the
               relatively immediate financial needs of surviving spouses, but their long-term financial needs for
               which age is a good proxy.
      Holding
          o Appeal dismissed. The age restrictions on survivor’s pensions were not a violation of s.15(1).
      Reasons (Per Iacobucci J. for the Court):
          o Purpose: to prevent the violation of essential human dignity and freedom through the imposition
               of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all
                   persons enjoy equal recognition at law as human beings or as members of Canadian society,
                   equally capable and equally deserving of concern, respect and consideration.
               o   Comparative Approach: claimant chooses the person, group, or groups with whom he or she
                   wishes to be compared for the purpose of the discrimination inquiry. Locating the relevant
                   comparison group requires an examination of the subject-matter of the legislation and its effects,
                   as well as a full appreciation of context.


               o   Law Test: A court that is called upon to determine a discrimination claim under s.15(1) should
                   make three broad inquiries:
               o   (1) Whether a law imposes differential treatment between the claimant and others, in purpose or
                   effect
               o   Does the impugned law: (a) draw a formal distinction between the claimant and others on the basis of one or more
                   personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian
                   society resulting in substantively differential treatment between the claimant and others on the basis of one or more
                   personal characteristics?
               o   (2) Whether one or more enumerated or analogous grounds of discrimination are the basis for the
                   differential treatment;
               o   Is the claimant subject to differential treatment based on one or more enumerated or analogous grounds?
               o   (3) Whether the law in question has a purpose or effect that is discriminatory within the meaning
                   of the equality guarantee
               o   Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a
                   manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise
                   has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value
                   as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?



               o   Contextual Factors: The contextual factors which determine whether legislation has the effect of
                   demeaning a claimant’s dignity must be construed and examined from perspective of the
                   claimant. The focus of the inquiry is both subjective and objective. The relevant point of view is
                   that of the reasonable person, in circumstances similar to the claimant, who takes into account
                   the contextual factors relevant to the claim. Some important contextual factors influencing the
                   determination of whether s. 15(1) has been infringed are, among others:
Pre existing Disadvantage              Relationship between Ground             Ameliorative                Nature of the Interest Affects
                                       and nature of differential               Purpose/Effects
                                       treatment

Disadvantage, vulnerability,          Does the differentiation take into If state is trying to             What is the economic,
stereotyping, prejudice – does the    account actual needs, capacity      help a more                      constitutional or societal
further differential treatment        and circumstances? If yes, it may disadvantaged                      significance of the interest
contribute to the perpetuation or     not be discrimination. See          person or group, less            adversely effected. Is there
promotion of their unfair social      Weatherall for differential         likely to be                     restricted access to some
characterization…                     treatment properly based on         discriminatory by                fundamental social institution
                                      different characteristics.          excluding more                   or basic need? Is there
                                                                          advantaged                       complete non recognition of a
                                                                          individuals.                     group?




               o   Application: the impugned provisions clearly draw a distinction on the basis of an enumerated
                   ground, age, which results in unequal treatment in the form of either a delay or reduction of
                   benefits. The law on its face treats younger people differently, but the differential treatment does
               not reflect or promote the notion that they are less capable or less deserving of concern, respect,
               and consideration. The law functions not by stereotype, but by distinctions corresponding to the
               actual situation of individuals it affects. By being young, L, has greater prospect of long-term
               income replacement and remarrying.
           o   Another factor supporting the view that the impugned provisions do not violate essential human
               dignity is the clear ameliorative purpose of the pension scheme for older surviving spouses. The
               challenged legislation simply reflects the fact that people in L’s position are more able to
               overcome long-term need because of the nature of a human being’s life-cycle. Under these
               circumstances, Parliament is entitled to premise remedial legislation upon informed
               generalizations without running afoul of s. 15(1). A more precise correspondence will likely be
               important where the individual or group which is excluded by the legislation is already
               disadvantaged or vulnerable within Canadian society.

Lawrence on S.15: Purposes, Recognized Forms of Discrimination and Immutability
      4 purposes of s.15 per Eldridge
           o (1) expressing commitment to equal work and dignity of everybody [worth of everyone]
           o (2) rectify and prevent discrimination against disadvantaged groups in society [recognize effects of
              past discrimination]
           o (3) eliminating discrimination through attribution of proved characteristics [do not rely on
              unproved stereotypes]
           o (4) taking into account the true characteristics of the group [understand true characteristics]
           o Per Eaton: Worth, human dignity, accommodation, prevention of the enjoyment of benefits (not
              just imposition of hardship)
      Recognized forms of discrimination under s.15
           o Adverse effects discrimination
                    (1) law is neutral on its face (may not have analogous ground)
                    (2) law might differentiate on its effects (no intent required)
           o Direct Discrimination
                    Directly recognizes an analogous ground
      Immutable
           o Cannot change it (constructively immutable – changeable only at unacceptable personal cost)


Eldridge v. British Columbia (AG) (SCC, 1997)
GREEN 835

      Facts
           o   Medical care in British Columbia covers most medical services. However, the province does not
               pay for sign language interpretation for the deaf. Eldridge (E) and two others who were born deaf
               and whose preferred means of communication was sign language contended that the absence of
               interpreters impaired their ability to communicate with their doctors and other health care
               providers.
      Issue
           o Did the failure to provide public funding for sign language interpreters for the deaf when they
             received medical services violate s. 15 and fail to be saved by s. 1? (specific protection offered by
             s.15 here: equal benefits of the law)
      Arguments
          o The Crown argued that interpreters were merely incidental to the provision of public health care
             and failing to provide them was not discriminatory. Further, they say that the lack of another
             benefit scheme cannot be the basis of a s.15 claim.
            o   E argued that by failing to provide sign language interpreters, BC was preventing deaf people from
                receiving proper medical care.
      Holding
          o Appeal allowed – declaration of invalidity granted. The failure to provide public funding for sign
               language interpreters for the deaf when they received medical services did violate s. 15 and failed
               to be saved by s. 1.
      Reasons (Per La Forest J. for the Court):
          o As deaf persons, E belongs to an enumerated group – the physically disabled.
          o Effective communication is an indispensable component of the delivery of medical services, and
               cannot be separated from it. Only from the perspective of the hearing, could you actually
               articulate the possibility of separation. The joining of medical services and the provisions of
               effective communication allows the government more deference and limits the scope of the right
               protected, when compared to the situation that would arise had the provision of effective
               communication been dealt with alone.
          o Rule: Discrimination can arise both from the adverse effects of rules of general application as well
               as from express distinctions flowing from the distribution of benefits.
          o Application: The failure to provide sign language interpretation where it is necessary for effective
               communication therefore constitutes a violation of the s. 15(1) rights of deaf persons. The refusal
               to expend a relatively insignificant sum to continue and extend such a service cannot be minimally
               impairing.
          o S.1: government granted wide latitude, since there are competing matters of social policy and
               managing scarce financial resources (seemingly inconsistent with NAPE). Further, there was no
               reasonable basis for limiting the right (refusal to spend money here is unreasonable) so the right
               was not minimally impaired
      Lawrence
          o Institutional competence issues here since telling the government how to spend money. Difficult
               to draw the line – when is it not minimal (ex. 2% of budgetÉ)
          o Deference: maybe it is context dependent – ex. if only 1 deaf person, then maybe give govt more
               deference, but if many deaf people, may give them less


Notes: After Eldridge
GREEN 841

      (1) Vriend v. Alberta (SCC, 1998)  successful claim of “adverse effects” of discrimination (since
       discrimination is silent here). Underinclusiveness of the Act creates a distinction between gays and other
       disadvantaged groups that are protected by the legislation: denial of substantive equality.
            o The comparator groups – other affected groups under the IRPA
                     Compare to heterosexuals, who are not protected. This helps Vriend since heterosexuals
                         are hardly ever discriminated against.
      Statistical Adverse Effects Discrimination
            o (2) Adverse effect when have a facially neutral, burdensome rule having a statistically
                disproportionate impact on members of a disadvantaged group – such a rule imposes equal
                burdens on all to whom it applies, but the population to whom it applies is composed
                disproportionately of members of disadvantaged groups. Court hesitant to decide a claim based
                on statistical due to potentially far-reaching implications
            o (3) Symes v. Canada – failed claim on statistical adverse effects – challenge by female lawyer to
                provisions of the Income Tax Act: argued that it had a disproportionate impact on women since
                they bear the burden of child care.
                        Held: Not enough to show statistics that women bear burden of child care. Must show
                         statistics that say women disproportionately PAY childcare expenses
            o   (4) Thibaudea v. Canada – child care tax provisions case – T argued that the rules penalized
                custodial parents since the family law system consistently failed to take the tax impact into
                account. Since 98% of child care benefactors were women, the fact that the rules had a
                statistically disparate impact on the basis of sex was evidence
                      Held: the tax rules did not have a negative impact on custodial parents; rather, the rules
                         operated to the overall advantage of the post-divorce family unit

Adverse Effects Discrimination:
C. Sheppard, Review of BC v. BCGSEU

GREEN 844

(Meroin) British Columbia v. BCGSEU (SCC, 1999)
          o A B.C. firefighter who successfully argued that she was discriminated against on the basis of sex
               when she was dismissed from her employement for failing an aerobics test
      What is adverse effects discrimination?
           o What is significant is the effect (so intent is not significant)
           o Intent should be no more than an aggregating factor (if actually intend it, then that makes it
               worse)
      When are disparate effects discriminatoryÉ
           o Many of the adverse effects discrimination cases involve employees of minority religions
               (straight forward since 100% exclusion of disadvantage results – ex. O`Malley)
           o In cases dealing with race and gender the disparate effects are often not so straight forward
               (ex. not 100% exclusion of women or minorities – this is like Meroin where some women
               pass the test)
           o Still unclear when statistical disparity results in discrimination – only that that in Meroin
               the court held that 65-70% disparity was sufficient for adverse effects discrimination
      Causation factor also required for adverse effects discrimination: the adverse impact must be
       directly caused or related to the impugned provision and not be due to other factors (Symers v.
       Canada)
      2 Types of Adverse Discrimination
           o (1) facially neutral policy practice or standard [ex. firefighter one that does not mention
               gender]
                    A standard rule, test, practice or policy that is applied to everyone in the same way.
                       The adverse affects may affect (a) all members of a group protected by human
                       rights law (100% exclusion or harm – ex. religion); or (b) a disproportionate
                       number of members of a group protected under human rights law
           o (2) facially neutral distinction or categorization
                    Harmful differential treatment, categorization, or direct distinction that corresponds
                       to a prohibited ground of discrimination in HR la (ex. domestic workers)
      Lawrence: challenge with adverse effects is the far-reaching-ness of the claims
           o Since every time have statistically relevant claim you have a Charter problem  millions
               of examples for this
Outline March 30 2009

Section 15: Lecture 3

-aboriginal residence as analogous ground

-excluding non-resident aboriginals from voting in band election based on a stereotype…not interested in band

-issues were definitely relevant to non-reserve Indians

-rational connection:

-almost anytime you see an outright ban, there will be s.1 problems (no evidence of tailoring or cushioning) 
minimal impairment

- need to prove any lesser measure would have ruinous costs or simply wouldn’t work



Finding and Recognizing Discrimination
M v. H
            a. Ontario Family Law Act defines spouse as man/woman…
            b. Does s.29 of OFLA violate s.15 of the Charter…Lesbians were not eligible for property division and
               support  woman had no way of legal recognition for her contribution to relationship
            c. OFLA is not about marriage…difference is between same/opposite-sex cohabiting couples
            d. Spousal support provisions…may create situation where one party is left destitute because their
               intangible contribution are not recognized
            e. What defines a relationship? What’s the difference between roommates and a conjugal
               relationship
            f. Pre-existing disadvantage: Law itself does not cause vulnerability…background context
            g. Corresponding:
                     i. Section 15 Analysis
                            1.
                    ii. Differential treatment?
                            1. Pre-existing disadvantage
                   iii. Discrimination? The contextual factors from Law
                            1. Pre existing disadvantage: law does not cause vulnerability…pre-existing
                                background context
                            2. Correspondence or lack of between ground of claim and actual
                                need/circumstances/capacity of group
                                     a. Dissent focuses on this factor
                                             i. Gaunthier: provision recognizes that burden of children falls on
                                                women disproportionately
                                            ii. But, no pattern of dependence given that lesbians do not have
                                                children
                            3. Ameliorative purpose or effect
                                     a. Law has an ameliorative purpose but it is under inclusive
                            4. Nature of the interest affected
                                     a. Note that H is freed from an obligation…does this raise a problem?
                               b. Law test: has the human dignity of the claimant been
                                   demeaned…subjective/objective
                               c. Gaunthier…not being reasonable
               iv. Section 1: P&SO? RC? MI? “no more than reasonably necessary to achieve goals”
                       1. Deference is an overall issue…but not here
                       2. Here, you must consider deference at every stage of analysis (Court hasn’t been
                           consistent in its approach requiring this  deal with at beginning)
                               a. P&SO  protection of women and children…but look at OFLA…it is
                                   drafted in gender neutral language and doesn’t recognize that most of the
                                   payors are men and payees women
                                         i. FLA is about private relationships…but if they get nothing here,
                                             they rely on the state
                                        ii. This is not about state benefits…it’s about creating private
                                             responsibilities for support
                                       iii. State can’t advance any real reason for excluding lesbians
                               b. RC: how does omitting same sex couples help protect women and
                                   children? It does not…no RC
                                         i. On children…2 problems: under and over inclusive…same/oppo
                                             sex may/may not have kids
                               c. Minimal Impairment: does the law limit the right no more than
                                   reasonably necessary to achieve the purpose
                                         i. Gov’t argued there were other remedies available
                                        ii. Gov’t said no to deference…no competing group…not balancing
                                       iii. Also no evidence that gov’t was incrementally providing
                                             improvements to lesbians…would it have helped their case had
                                             they adduced some?
                v. Remedy
                       1. Court severs the definition and declares it of no force or effect
                       2. Need to look at the right comparator group

Significance of the Comparator Group:
Granovsky
                vi. Failed s.15 challenge on Law test
               vii. Temporary disability…Granovsky claims intermittent back injury since 1980…very
                    technical claim about the contributions under CPP…back injury preventing him from
                    working steadily…he had not made sufficient contributions to CPP scheme
             viii. Dropout provision is supposed to allow people to contribute less if they are permanently
                    disabled
                ix. They claim that he is not permanently disabled (he wasn’t so declared until 1993)
                 x. He wants to compare himself to a more advantaged group, but the court says a less
                    advantaged group  he wanted to compare himself to the non-disabled
                xi. Courts says that he has to compare himself to the permanently disabled
               xii. Grounds: no problem
              xiii. Correspondence
              xiv. Ameliorative purpose: ensures permanently disabled can do CPP (aimed at an even more
                    disadvantaged group)
               xv. Interest protected: not reasonable to see their human dignity affected
              xvi. Basically…temporarily disabled get screwed…better off getting permanently disabled
             xvii. Gov’t wins here because CPP is tailored to help the permanently disabled; also CPP is a
                    benefit, not a survival tool
           h. Discrimination in Winko: Challenge to Not Criminally Responsible regime
                   i. Treats people differently on basis of mental disability…not discriminatory
                  ii. Individualized assessment…not an application of a stereotype
           i. Gosselin
                   i. The enumerated ground of age  age is an enumerated ground…usually used by those of
                      an advanced age…no history of recognizing claims by 18-30…no record of invidious
                      treatment
                          1. Ordering by age is a normal part of our society…common sense
                          2. Young adults not a group we must be concerned about
                          3. How do we recognize what is discriminatory and what is not?
                  ii. Contextual Approach leads to opposite conclusions
                          1. Opposing sides apply the same test and come to different conclusions
                                   a. Welfare law made distinction between those over 30 and those
                                       under…over 2/3 greater for over 30
                                   b. Those under 30 could receive the higher benefit if they participated in
                                       working programs…she claimed she couldn’t because of physical/mental
                                       illness…stress
                                   c. She was the representative claimant of a large group demanding huge
                                       reparations
Factors                           Majority (McLachlin CJ)             Dissent (Bastarache J)

                                  Common sense?                      Context?

Pre-Existing Disadvantage

Correspondence                    Not enough

Amelioration

Nature and Scope of Interest
Affected


                   iii. The subjective objective approach to human dignity


What’s Law good for?  Rider
          j. Critiques
                   i. Test is vague (Gosselin)
                  ii. Speaks to the objectives of the law which should not be considered until s.1  purpose
                      should be on effect, not purposes
                 iii. Focus on formal rather than substantive equality
                 iv.
          k. Findings
                   i. Court captured by equality claimants…but many have started to fail
                  ii.
                 iii. At what stage do cases fail?
                          1. Andrews failed cases on grounds
                          2. Law failed cases at third stage
                             3. Court never provided any analysis as to the differences between factors or which
                                 other factors may be extant
                   iv. Correspondence factor as formal equality
                             1. Correspondence factor goes government
                             2. Lots of cases that have differential treatment on an analogous ground that are OK
            l.   Why does the Court struggle with Section 15?
                     i. Potential breadth of s.15 is enormous…if we take it seriously, the scope is huge
                    ii. The potential scope in redistributive social policy is huge and scary
                   iii. Institutional competence issues


Kapp: The end of the Law analysis
         m. Communal Fishing license granted to some bands, not other (same issues as Sparrow)
         n. Here, gov’t has negotiated commercial fishing…one day per year ban non-license holders to fish
         o. Here, a group of non-aboriginal fishermen challenge the license as discriminatory
         p. Not a question of aboriginal right…
         q. Return to Andrews, focus on discrimination
                   i. Andrews test is key test
                  ii. Law is still relevant and can help us understand…the centrality of the human dignity test is
                       done
                 iii. Problems with applying law
         r. Independent significance for section 15(2)  Lovelace overturned
                   i. As long as a law can come within 15(2), no need to do 15 analysis
                     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.



    2. What should we be doing with Section 1 in Section 15 cases?
         a. Why is deference not often invoked?
                  i. Not always balancing
                 ii. Hurdle to establish a s.15 claim: if it’s difficult to establish a s.15 claim, the government
                     must not be able to easy justify it
         b. S.15 cases are paradigmatic of those where deference is accorded

    3. Sketch of Analysis in Challenge to Section 43 CCC (classwork)

				
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