Canadian Charter of Rights

7/25/2019 Canadian Charter of Rights

1/110

Lecture 1 WEEK 6: Friday

Introduction to the Charter:- Amendment to add charter = revolutionary- Significantly increased the lawmaking power of courts- Courts have made decisions on many important pub issues that would have usually been within

domain of legisures are now subj to jr under the charter court play instrumental role on issuessuch as abortion! hate speech! porno! etc"

- #hink about where your ideas on these issues comes from- $ote: only applies to government action or actionso %oesn&t apply to regu regular citi'ens

o Incl" fed gvts! school boards! municipal gvts! etc"

o (ut no help wrt purel private interactions charter cannot regulate personal relationships

o So always need to first ask: is there a gvt actor?- )receded by BOR 1960* which was limited in scope though +simply a piece of fed legis so had

no appl to provl laws and it was ineffective at actually dealing with hr issues in the fed conte,t-"#his ineffectiveness was one of the catalysts motivating the entrenchment of the charter in ./01"

- #his wasn&t without controversy- (ut there was also a controversy and discussion as to the nature of the right incl in the charter

- Charter protects important values that in 01 were fundamental: democratic rights! mobility rightslegal rights! e2uality rights! official language! minority3educational rights! enforcement! etc

- #here are limits to these rights +s.: rights guaranteed are subject to such limits that can bedemonstrably justified-

All the rights in the charter are negative rights(ut right to a min standard of living = ositive rightgvt has to take steps to ensure this

- So the government needs to provide this- And the charter is 4$56 a negative rights document- Challenges against this have been unsuccessful

! stages o" a charter cha##enge:1$ %n"ringement- 7hat the law does and if rights were Infringed- %oes a law limit a guaranteed right or freedom- If no infring! then no problem

&$ 'usti"ication- So even if gvt infringed- Can they demonstrate it was reasonably justified8

!$ Remedy

- (road provision

(ature o" charter rights- 6 )road categories o" rights

o 9undamental freedoms

Conscious! relig! thought! belief! opinion! assembly! assoc

o %emocratic rights

ight to vote

guarantee of reg elections

annual parl sessions


2/110

o ;obility rights * s .?

mostly wrt the crim law but not all

incl rights to counsel! unreas search and sei'! habeus corpus! presump of

innocence! life3lib3sec of persono @2uality

@2uality before and under the law

.+1- protection for affirmative action programs

this is not a pos right * not a guaree to affirm action program! its if the gvtenacts this then wont derogate from anyones e2ualy rights

o ;inority language and edu rights * s .1B

- #hese are all guaree! but not absolute and subject to s .o Subj to reas limits proscribed by law as can be reas justified in a freedemo socy

o So the Canadian charter models itself after international human rights docs

o #here is no limitations section in (4 in DS Canada focuses on balancing rights

o (ut charter drafter saw American e,perience so we see need for limits to protectindividuals and groups within the Canadian commy- Charter also has interpretive provisions

o 5ooked E this in federalism analysis s 1 guarees cant use any other part of ch! ie s.! to derogate from abo rights

o s 1 * commitment to preserve and enhance multicultural heritage

o s 10 * further e2ualy guaree in relation to gender e2ualy- In addition to this:

o s 1?* specific remedies to redress unjustified infring of rights- 5ike all consti docs! the charter reflects to a large e,tent the social"! political and legal concerns o

time

- Some would say that the Charter is a liberal document but if compared to other more FmodernGright protectors it is nonetheless actually conservative compared to more recent constitutionalenactments

o Social welfare rights are not protected by the charter

Compare to the South African e2uivalent also that has a section guaranteeing the

right to a healthy environment! access to healthcare! social security and basiceducation

- Important to note that the charter does not give any ositive rightsbut protections fromsomething

- If we analyse S . a lot of things are missing here +se,ual orientation! citi'enship! gender aremissing from this enumeration-" Court has to engage in interpretation that draws analogies to

include these things for protection" Shows e,tent to which consti document is framed on issues atime it was drafted

- S. protects individuals from certain state action but does not re2uire the govt to take action toprovide e2uality +Hfreedom from= negative right document-

o So we cannot force the government to do something * or re2uire them to act to ensure

certain things +ie basic housing-o (ut on the other hand! some say judges should not be interfering with validly enacted laws

- Issues of negative right comes up in discussion of s +effort made to include positive charter inCharlottetown but was not fulfilled-


3/110

- #he ne,t criticism of the charter is that it does not go far enough by not creating these positiverights in the sense of creating obligation on the govt to take positive steps to ameliorate the plighof the minorities

- ;ust be mindful of this when interpreting the charter- Arguments for broad liberal interp should be employed to include these things others think that

you need consti amendment to do this others think that judicial interp is blurring sep of powers*harter interretation

- $eed to have some basic processes of interpreting the charter

- 5ooks at the legislation- under the charter involves 1 steps- %epending on right E issue! will be addl steps and tests factored in- (ut generally overall approach is to first determine whether impugned law inringes ch right! then

determine whether3not law can be justified under s .- *haracteri+e #a,

o Assess purpose and effect

o #he effect of the law matters with the charter

o Important distinction from )S analysis: in )S look at practical effect with caution! here

the effect is what we are most concerned with in Charter conte,to #his is because it is rare that you will see a law that in purpose infringes the ch right

o So it is the effect of that law * in applying this law! does it create discrim8o If effect is to discrim! impinge relig freedom! etc" * then no force effect! regardless of

whether purpose is constil

- Not ordinary statutory interpretation

o @ven from the first litigated charter case they recogni'ed that the charter is designed and

adopted to guide and serve Canadian society for a long time and so any narrowinterpretation that could potentially stunt the growth and development of the charter had tobe avoided

o So cannot interp in a way that is static or narrow

o 19-. "irst charter case: court held: look at charter in way that reconciles with community

charter is designed to guide and serve the Canadian community for a very long timeo In Hunter:said not like any other statute

7hile some rules may be the same * need special understanding of ch when

interpreting it udges in that case saying ch needed to be capable of growth over time to meet

new realities which framers wouldn&t have thought of in ./0J>1 $eed to contemplate new issues that arise

#hese statements not that new in terms of consti jurisprudence

go back to Personscase and decision of jcpc * sankey j Fliving treeG interp of const

o In addition to these positive stmts! there has been e,press rejection of being guided by

original intent in interpretationo BC motor vehicle:une2uivocalrejection of orig intent for 1 reasons:

1$Stmt of partic individuals E time when law drafted are not partic reliable guide to

discerning the intent of the many who participated and took active role in draftingthe charter

%oubtful u can say single! common identifiable intent vision shared byevery single member of parliament in passing the Charter

&$Adoption of a strict interp approach would free'e meaning of partic charter rights

as E a specific time * no possy of growth or adjustment to changing social needs

- )urposive approach


4/110

o Big M:%i,on j * analysis of charter is to be undertaken by reference to the character and

larger obj of itselfo Koes back to historical origins of concepts enshrined! etc" * see 2uote on slide

o Kenerous! rather than legalistic * aimed E fulfilling the purpose of charter protection

o Le goes on to say E same time it is impt not to overshoot actual purp of right or freedomin 2 but recall ch not enacted in vacuum * therefore should be placed in proper conte,ts

o So don&t divorce ch completely from conte,t but also don&t free'e interp E partic time

o $eed to look E purpose for which right e,ists when challenged w deciding whether3not

right = infringedo A lot of the fedm analysis involved a mechanical appl of tests3rules

o (ut w ch! the judy is called on to answer fundamental 2s and answering these 2s * these2s cant be answered thru an appl of just rules in a strict way

o So more so than in the fedm part of this course * interp! appl! reasoning! analysis are vita

to charter interpretationo 4ne thing to know rules3steps * but another thing to apply rules and come up with sensibl

actual solution to problem

- Contextual approach

o ;ust also take conte,tual approach

o ;ost often the case when imposing limits on charter rightso Impt when dealing w s .

o 4ther rights * voting rights in sB! s liberty !s. e2uality !and s. Moting rightsemphasis given to underlying conte,t of Canadian demo when

determining what s B means every citi'en has right to vote for the L4C andparliamentary legisl assembly at provincial level

(ut the SCC interp of s B has been influenced and the right to vote 3 guareed right

to vote has been influenced by Canadian factors like history! poli systems! geog ead literally s B re2uires every person who is a citi'en to be able to cast a ballot in

every election! (ut voting rights not unltd * +e," 2uald by age re2t-

So . restriction off the bat #he scc has said charter provides right to vote only in fed provl elections

(ut this doesn&t apply in the conte,t of sB right to vote does not include school

board! municipal elections! or in a referendum

#his came out of Haig:recall talked about Charlottetown ref" * in 2bc! thechar referendum was held under provl legis which re2d < mths of residencein prov before entitled to vote * in all other provs ref took place under federalegislation" L just only moved to 2bc so didn&t satisfy residency re2t to vote ireferendum in 2b! but also not fed legis bc needed to be resident of ur pollinstation and he was in 2bc and not in eligible federal district" So L challengedfailure to incl him under fed legis as being contra his voting rights" / ! on#y

a#ied to "edrov e#ections and not re"erendum$ /o this is another#imit on voting rights$

#his is bc Canada is a geo3terry based rep demo! so u have to live in areafor which u are selecting ur rep

o ep demoy broken up on geo boundary lines bc L was not resident

in district and in prov that didnt recogni'e his residency resulted in Lbeing out of luck

o #his isnt only time boundaries for elections have come up

o #here was another reference Re political electoral boundaries:whthe

sask drew boundaries ok" *ourt set out rinc that under#ie right tovote* said meaning of right to vote is not e2ualy of voting power per


5/110

se but effective representative of the conditions of effective rep inclmore than just having a relative partiy of voting power * this is imp totensure individual vote isnt overly diluted but also consider factors thaare fair * minority rep! commy int! etc"

So on one hand indiv vote cant be unduly diluted but also need

to recog cult and group identityN so when we apply all theseprinc to case E hand +incl drawing e boundaries- court "oundrocess "or dra,ing )oundaries ,as "air ,ithin s ! even

though i" #ived in ur)an area vote ,ou#d tech2y count "or#ess3 4 a## o" these things ,ere 5usti"ied on traditiona#)ases o" geograhic and comm2y ints

$eed to take into acct more than just . person . vote mantra *

individualistic approach specific Canadian approach ininterpretation

o *ontetua# aroach is a#so aarent ,s 7 #i"e8 #i)8 security o" ers3

Dnder s court ruled that e,tradition of fugitives without assurance of no death

penalty is a violation of s #his is not bc of aversion to death penalty but about broader conte,tual factors that

the death pen is not infallible and high proportn of innocent people being e,ecuted

#he fact that in can and intl e,perience shows thousands of wrongful convictionsand a growing intl movement toward abolition of death p bc difficult in making sure have it abso right

So conte,t decision as opposed to moral decision for interpreting this way

o *ontetua# aroach in / 1: eua#ity rights

Significantly! crt rejd idea that every ine2ualy in law will amount to charter violation

ather court asks: %oes this ine2ualy create discrim when viewed in larger poli an

soc conte,t So test is open ended list of conte,tual factors * Las

Incl" pre>e,isting disadv

So e2uality is conte,tual * sometimes need to treat ppl diff to achieve e2ualy

Also goes back to s . * can it be justified8 ;ust approach all rights in conte,t

- Reconciliation of competing rights

o 7hat happens when u have competing rights8 1 diff charter rights collide * so freedom ofe,pression in relation to hate speech conflicts w right of disadv group to enjoy the law andnot be subj to hate speechNor where freedom of relig clashes w e2ualy rights re: ssmarriage or abortion

o In trying to reconciling rights! SCC has rejd any kind of hierarchical approach to rights

o So rights don&t get precedence over others All on e2ual playing field

o See this when contrast w pre charter jurisdiction

o Dsed to be pre charter! C5 would prioriti'e accs rght to fair trial over another persons righto free of e,pression" ight to fair trial = abso prioriti'ed" $ow * only publication ban whenconsidered reas alternatives and abso necy to prevent real and substantial risk toaccuseds right to fair trial

o #7D CAS@: court drew distinction on holding belief3actual belief school that taught that

homose, was wrong religious freedom was protected in this instanceo @," graduates of #7D law school are not accredited +how does this mobility rights if you

go to this school you cannot practice in 4$! etc-o Courts wont allow . ch right to nullify another constitutional right outside the Charter

o Court has rejd args about denominational schools or miny lang rights for e,ampleN


6/110

o #his is particularly evident in free of e,pression is interpd very broadly * so this lends to

things like incl things like porn! hate speech! etc" * forms of e,pression which can causeharm to others +left to s. to see if this is reasonable-

o E same time! crt has recogd competing rights E stake so sometimes can be justifiedin restricting e,pression

- !nterpretive sources

o 7hen interpreting the charter first look to the charter itself

o After! then look at the broader constitutiono 7hat else does the SCC draw upon8

o Courts try not to be philosophical but sometimes you will see fre2uent references to%workin and ;ill in early decisions +but more in early days-

o Court should be interpreted in a manner consistent with internationa# o)#igationsbut no

as obligations but with the principles of fundamental justice that would enshrined therein *so we look to international law as evidence of those principles but not as controllingthemselves

o @," "uresh: court looks at obli at int law concerned with the principles of fund justice andint law is form of evi of principles of fund justice that help interpret fund jus in s and itsmeaning +court had regard to int conventions against torture-

o Listory! geo! political conte,t

Hunter v Southam- )urposive approach is laid out at issue was not just charter interp but search and sei' case- Court says this s 0 right is vague no specificity beyond the bare guarantee of freedom from

unreas search and sei'- In setting out the approach to be taken to such vague guarees contained in ch! the court says

the task of e,panding the consti is crucially different from that of interp the statute- Consti is drafted w an eye to the future function is to provide continuing framework capable

of growth to meet realities unimagined from framers" udiciary must bear these considerationwhen interpreting

- #he court talks about the purposive approach continually e,ploring the boundary of charterrights +as society changes and thinking on issues has changed-" #his indicates that it isunreliable to rely on case law from .J years ago bc of dynamic society

- Cannot have strict interp of tests- Laving est proper interp! the court considers cases from Canadas (4! (rit legal heritage

and e,periences in the us" )articy the DS jurisprudence around the ? thamend! to ascertainthe nature of what is guard in s 0

- 7hat is s 0 meant to capture and protect8- #he court says E most basic level * right to be secured against unreas search and sei'ure

includes at least the right to a reasonable e,pectation of privacy- ;ight be more! but at very least it is about privacy

- S 0 re2uires an assessment and balancing of whether the indiv interest in being left aloneshould give weight to gvt int in intruding into privacy in order to further legitimate collectivegoals for benefit of socy as whole

- ;hus8 )a#ance indiv right to rivacy , )roader comm2y needs- #his re2uires a mechanism for preventing unjustified and unreasonable searches- $ot just about determining after the fact that search was unreasonable but preventing it in the

first place +proactive v reactive-- Implicit in courts analysis here is the view that charter was developed for a urose- So need to determine what this purpose is behind s 0: prevent searches before they happen

therefore system for search being authori'ed before violating privacy- $eed to do a )a#ancing act


7/110

o (alance bw state and indiv int has to occur in the foreground

o #his is achieve by setting up a system:- 1$ red imaging

o (ased on this image! the C;) obtained a warrant and they entered and found grow up

worth up to 1O and sei'ed moneyo = court as>s "or a## s - discussions:

o %oes the accused have reasonable e,pect of privacy8

o If yes! has e,pectation! was this violated by police conduct8

o Court notes few things are as impto (ut has to be balanced against commy desire and need for protection

o Secy and suppression of crime = legit concerns

o Kuaree in s 0! protects only guaree of reasonable e,pectation of privy

o #here are a wide array of techni2ues so we have to take a rinci#ed aroach in

assessing ,hether techniue is intrusive vis a vis rivacyo Court places a lot of emphasis on the ua#ity o" the "or,ard #oo>ing in"raredand what it

can produceo Court notes that home is most sacred place most e,pected and highest degree of privacy

how much of ourselves can we shield from Stateo Court notes distinction on types of privacy: here it is informational and territorial

o Courts analysis is on technology itself and evaluate the 2uality on privacy

o 5ook at totality of conte,t

o Court says flir didn&t reveal core information * tech only as good as inferences it can support

o So the cru, of the analysis * reas e,pect of privy8

o #he court says the tech is only as helpful as the inferences it is capable of generating

o 4n its own! does not tell you what is going on in house! you must make inferences $oassistance w determining grow op vs sauna vs dryer etc emitting heat

o (ut that! combined with previous information * flir being only one thing

o Court says presume someone in house e,pects information from house affords e,pec of priv

o Info inside their house is going to be and remain priv


8/110

o Court says allowing heat to escape = rebuts e,pect of privacy

o $o serious of particular rel personal info or privacy int in the heat patterns of ur house

o ;uch turns on courts analysis on the state of tech E time

o (innie says we need to eval techs according to present capacity concerns addressed asthey arise andE this stage 95I is non intrusive and mundane in what it can collect

o eveals no intimate details about home

o %iscounts that flir puts police Fin home look at nature and 2uality of technology

o #herefore! heat emanations = meaningless without some other inference

o So we need to calibrate e,pect of privy we have in accord w the purpose of s 0o Laving regard to purp! s 0 is not triggered by flir image that discloses heat of an unknown

descrip3origino (innie : s 0 protects privy for individuals * ppl not places so we have to look at what this

heat says about the person and not the home itselfo #he info obtained thru flir doesn&t touch on biographical core of personal info or reveal intimat

details of lifestyle E end of day! tech only reveals info e,posed to public anywayo (ecause this was state of tech we don&t find e,pect of privy

o @## comes )ac> to ta>ing urosive and contet aroachA tota#ity o" circumstances

o 7hat is the purpose which drives s 0 and interp in way respectful of purp for s 0 and analysisof potential infring way that has regard to s 0

;ota#ity o" circumstances test:." 7hat was the subject matter of the 95I image1" %id the respondent have a direct interest in the subject matter of the 95I imageB" %id the respondent have a subjective e,pectation of privacy in the subject matter of the 95I

image?" If so! was the e,pectation reasonably objective: must have regard too #he place where the search occurred

o 7hether subject matter was in public view

o 7hether the matter has been abandoned

o

7hether the info was already in the hands of third parties if so was it subject to obli ofconfidentialityo 7as police techni2ue intrusive in relation to privacy interest

o 7hether the tech e,posed any intimate details of the respondents lifestyle


9/110

Lecture &: Wee> 7 ;uesday

@AS4$A(5@ 5I;I#S 4$ CLA#@ IKL#S/aving a La, under s1

#his involves limiting the individual rights for the benefit of the greater good

$ote: bulk of analysis is in the justification $4# the acknowledgement of a right and whether it hasbeen infringed

Also! last week * s 0 has a built in limit of reasonableness +internally limited-

Another limitation is s

o It is internally ltd! subj to princ of fund justice

#oday: s .o %i,on in 4akes: s . says rights freedoms are constitutionally guaranteed and states the

necessary criteria for justifying those right +in s . itself- 1 main functions:

Sets out that rights in charter are consti guareed

States what is e,clusively justified criteria for limiting rights

9ramework for charter analysis:

o %oes the Charter apply8 #hen:

o ." Infringement +what is the charter right and then has it been breached- If yes

o 1" ustification +Can the law be saved under s.-

o B" emedy +what is available! s1?+1- broad remedies to general remedies under 1?+.--

/;E


10/110

have a relig belief-! but other rights need to apply to corps +ie s 1b freedom ofthe press and other media of cmn * press media = large corp conglomerates-

o &3 %s there a )reach o" a *harter right?

Interpret and apply specific rights in the charter

Hunter v #essling:for a search not to violate s 0 * need B things: prior auth! indp

person! reas grounds" Combines investigation act failed on last 1 so breach in ch"o !3 *an the #a, )e saved under s 1?

Can this be justified

$ote: this was not done in Hunter bc it is redundant in a s 0 issue +bc it cannot beunreasonable under s 0 but be reasonable for s . * but thats not concrete! there couldbe 1 standards of reasonableness-

S . is much broader than s 0 analysis

7ould be e,ceptional * ie war! insurrection N but need the e,treme circ to justify

moving to s . (ut still never heard of case where unreasonable s 0 was justified under .

o .3 What remedy?

In hunter:search not authd by law * didn&t pass test * infring of right

%eclar * law is of no force effect

#he legis is supreme law so any legis inconsistent is of no force and effect +declaration

4r s 1? remedies * broad section

/ection 1

o Sets out the charter guarees * rights and freedoms guarateed

o (ut also estabs the rights are not abso

o #hey can be subject to limits * such reas limits proscribed by law as can be demonstrably

justified in free and democratic socyo S . contains formal elements and substantive element

9ormal = proscribed by law we have a formal re2t that limits be proscribed by law

Substantive = gvt justification for limiting partic right justification of the means

chosen to limit the righto


11/110

Issue raised when CC sets out provisions for roadside breathaly'er testingneed to

give breathali'er forthwith" Kive sample right away no counsel etc" if refuse! taken tostation" Allowed even though in the CC no stmt that the limit on your access to counseis in the stat * it is necy implied to allow roadside breath testing to function" So this isan im#ied #imit"

Compliance w s .Jb * re2uires not only that detainees be informed of their right to

counsel but also that they have reas oppy to e,ercise right by contact counsel beforeimplicated

Regina v $rbans%y: court had to grapple w 2 whether3not implied limit of theirright by virtue of their CC provisiono Court said yes" Screening of drivers is a necy action in duty to enforce

drunk driving in CC" %oing the screening process necy to prevent duire2uires interaction by the police w drivers E roadside and no oppy toretain counsel prior to complying" So in some cases! the limit on the rightcan be prescribed dby law even though not e,pressly statted to be so inthe legis * arises by nec&y implication of the operation of the statute"

Ecessive#y vague #a,s 4 not roscri)ed )y #a, "or s 1

$ot effective limits do not define powers in precise manner

(ut the court has taken a fairly rela,ed approach

If cant be reas understood * too vague to impose limit of charter right $otwithstanding re2t that laws not be so vague as to be unintelligible! the court

has taken a rela,ed approach to this standard *so merely bc law is subject toshades of interp * not enough to take outside of sufficiently well defined

So just bc law has several interps which may attain from reading specificprovision! doesn&t mean unacceptably vague

"uresh:there were undefined3vague references to things like terrorism! nationasecyNfound in immig legis" #he court found the broad! undefined terms *terrorism! national security * were nonetheless not unconti vague

Language has to )e so )road that doesnt a##o, you to govern )ehavior

aroriate#y #here is a limit to how open>ended and ill defined legis can be in order to meet

proscribed by law re2t(ut court has been rela,ed in terms of standard * ie suresh* so unless completely no

understandable! vagueness args wont holdo Demonstra)#y 5usti"ied in "ree G demo soc2y

Charter itself is silent on how rights are supposed to be justified

;his is ,hat ma>es oa>es such a semina# caseA comes ure#y out o" the courts


12/110

o O charged contrary to this section$ @rgued unconstitutiona# )c it vio#ates the

resumtion o" innocence in 11d3 o" charter )urden in roving that he ,as not gui#ty8,hich is contrary to resumtion o" innocence

ISSD@S: Ha#idity o" s -

o .- %oes s 0 violate s ..+d- because of its reverse onus +court admits this reverse onus-

o 1- If it does! is s 0 a reasonable limit on the presumption of innocence that can be justified If yes to . and no to 1 * then invalid

13 Does s - vio#ate s 11d3 o" the charter?:

A- the meaning of section 0o Set out procedures

o (ut must consider the presumption contained in section 0: 4nce basic fact of possession isproven a presumption arises against accused that they had an intention to traffic

o )ossession is a lesser offense

o Since it contains a reverse onus * placing legal burden on A * must considerN"

(- #he presumption of Innocence and s ..+d- of the Charter

See slide for ..d: to be presumed innocent until proven guilty according to law in a fair and publichearing by an independent impartial tribunal

Charter right must be given )road and urosiveinterpretation

So %i,on says we need to #oo> at the urose o" this guarantee and ,hat interest is it meant trotect

So need to look E interests the right is meant to protect

Analysis needs to be taken looking E charter and character of right itself

o #his analysis is not taken in isolation * we need to consider the charter as a whole and the

object of the charter of a wholeo $eed to look E language chosen to articulate the specific right! historical origins of

concepts enshrined in charter right! and meaning3purp of other righs freedomso So to understand the purpose of a particular charter right! need to understand the cardina

values it embodies or enshrines


13/110

(D#N I$ this case you are guilty before proven innocentN

C- Authorities on everse 4nus )rovisions and the )resumption of Innocence (urisprudence underB$R said that presump of innocence as sub)ect to statutory exceptions * so despite similarity ofording beteen s +f and section ,,d of charter- B$R )urisprudence isn&t binding bc charter constientrenches guars of rights so fund&y diff than B$R and .ixon has to go through this

Low is it done in Canadian bill of ights8 /ection &"3

A piece of legislation but has a lot of same right and freedoms contained in Charter

#est for that: according to 5askin in another case: is whether the legislative provision calls for a

finding of guilt even though there is reasonable doubt as to the culpability of the accused As long as reverse onus is put into a law! then a massive e,ception is created that wouldnt violate

bill or rights as long as done through proper law

Dnder s ..+d-! should take that same limitation and apply it to the charter

Canadian bill of rights is not constitutional document and is not binding in relation to constitutionalinterpretation

Charter affords special protection

Also the wordsG according to lawG in ..+d- cannot mean that ..+d- is subject to statutory override * bif you could then s ..+d- would be hallow*onc#usion 4 CE/ in"ringes right under 11d3

%" an accused )ear )urden o" disroving an essentia# e#ement o" the o""ense8 ossi)#e "orconviction to occur even i" there is a reasona)#e dou)t

%n this case8 s - is a reverse onus rovision and is contrary to s11d3

&3 *an s - )e saved under s 1 o" the *harter as a reasona)#e #imit?

Section .

o #he Canadian Charter of Rights and /reedoms guarantees the rights and freedoms set out in

it subject only to such reasonable limits prescribed by law as can be demonstrably justified ina free and democratic society

S. is a limit on the rights in a charter

S. does 1 things: %i,on

o Kuarantees the rights and freedoms

o States what criteria must be used to limit the right


14/110

o Subject matter may vary the degree of probability = more serious offence etc"

o $eed a higher degree of probability because you are violating charter rights

o Court needs to be aware of the conse2uences of imposing this limit

o In some instances there may be cases where certain elements of s. are obvious andrelevant or irrelevantR

;o esta)#ish this roo" ;E O@KE/ ;E/;:13 Ha#id O)5ective 4 must bepressing and substantial

o 4bj that relates to pressing and substantial objective to warrant overriding charter right in afree and democratic society

o (eed to #oo> to the o)5ective o" the in"ringing measure

#he objective relied on should have clear reason for the infringement

o Courts are usually deferential at this stage * wide variety of objective have been upheld at thi

early stage * easy to get past this standard rare to see law fail at this pointo (ut if it goes against a right directly enshrined in the charter then it will be invalid objective

o 0uebec "chool boards:legis: if your parents are eng and they are educated in eng in 2bc the

children can go to eng school but if u came from @ngland! no right under law to send child toeng school bc parents no edud in 2bc in eng" /** said this rovision is a direct attac> onvery right enshrined in s &! 4 right to min2y #ang edu 4 so #a, itse#" ,as not motivated

)y roer o)5ective see>ing to deny right in entirety3o Big Mart:re2uired to close store on Sundays to observe Christian Sabbath" #his was not righ

to limiting rights of non Christian and to uphold this law would justify the law on the vary basisfor which it was being attacked +freedom of religion- and if it has as its objective protecting aparticular religious Sabbath then that goes against the very right we are protecting"

o 1ylberg v "udbury:leg that re2d recital of lords prayer in non>denominational schools" Leld

attempt to impose a particular religious observance and this is not va#id o)5ective$o @## these eam#es 4 ;EE stated o)5ective denied right entire#y$ (ot 5ust a #imit

)ut a denia# o" the right$ /o i" #egis denies the right as oosed to #imitua#i"y 4 notgoing to ass va#id o)5ective test$

&3


15/110

o ;inimal impairment

Las the law impaired the ch right no more than is necessary to accomplish the

objective +found E stage .-8 Are you infringing right as little as possible8

Still way to obtain objectives8

Leart of the justification test

;est: #east intrusive means+high threshold- but cases later have rela,ed this a bit *

so is there some other way to satisfy objectives

#here cant be any other option that is less intrusive (ut later cases have rela,ed this standard

eformulated 2 to ask whether there is some other reasona)#y ,ay "or the #egis to

satis"y the o)5ective in a ,ay that ,ou#d not imair the right or have #ess imacton the right than the current version?

- 3dard boo%s:right impaired as little as reas possible8 #his suggestsimpairment doesn&t have to be abso least intrusive but rather the leastintrusive given the legors objectives and other competing interests

- #here is a more open balancing of the ints of the state and the individualclaiming the right

- Leaves a margin o" de"erence in the court $4#@: So long as the objective falls within a range of acceptability it will be upheld at

this point +hutterian- ;%/ %/ ;E *ORE OF ;E @(@LC/%/ (DER / 1

#o not be you will need to have an alternative that is obviously superior to the one bein

suggestedo 5aw proportionate in Its effects +deleterious effects v benefits-

Bene"its need to out,eigh de#eterious e""ects

;he more severe 4 the more harm"u# e""ects 4 the more imt the o)5ective has to

)e ;he e""ect and e""ectiveness o" the #egis in achieving o)5ective M utmost imt

@ven if first 1 are satisfied it is possible that the severity of the deleterious effects of ameasure will not be justified

So the more severe the effects the more important the objective must be for it to be a

reasonable justification So where the impact on a right is particularly strong we need to re2uire the governmen

to show a strong objective for limiting that rightRR$ot just the objective of the legislative but the legislations effectiveness in achieving

that objectiveLogg thinks this part 4deleterious effects v benefits5is redundant

#hompson Nespaper case:the court struck down ban on publication of opinion polls

within the 1 hours immediately before election" #his was banned bc ppl could be

swayed by opinion polls" Court said this was unjustified infringement of free ofe,pression" #he court accepted that preventing inaccurate polls from influencing in lasdays of election was pressing concern = valid objective! and rationally connected! andmin impairment least intrusive means of doing so" But at .thste* the benefits ofpursuing the objective are so minimal and harm not so bad" #he benefits = marginal atbest! but the e""ect M su)2# )c )an inter"2d , ress8 and "reedom o" eression anderived voters o" e#ection in"o$So the deleterious effect here outweighed benefit opreventing ppl from opinion polls 1 hours before" $umber of ppl who are FstupidG 3easily swayed is small! not many going to fall in this category"

$4#@: if courts start to use this test more and give weight to this then the law will also

+on top of being rational etc"- have to be effective


16/110

- So gvts will have to show rationally connected and effective RRRo In this case! court can strike down law E ? thstage of 4akes even if no less intrusive

means and the objective is rationally connected

@#ying "acts to Oa>es test

13 Ha#id o)5ective:6@S! curbing drug trafficking by facilitating drug conviction is valid obj

6es Fsubstantial and pressingG

o #he problem has increased

o $umerous measures have been implementedo At an international level! a treaty was signed saying drugs constitute a serious evil

&3


17/110

o &3 ;he imugned measure inter"eres , the c#aimant2s a)i#ity to act in accordance

,ith his )e#ie" in a manner that is more than trivia# or insu)stantia# A state>imposed cost or burden does not suffice

#here needs to be evidence that the burden interfered with religious beliefs or

practice * or capable of interfering with mere imposition of burden is not sufficient"(ut actually interfere with religion3practice of religion

In this case! lower courts assumed this was satisfied! this court did too so then we

need to run through the 4akes test for this particular case

&3 %s the #imits 5usti"ied under s 1? ;%/ %/ ;E /E*;%O( 1 O@KE/ ;E/;

5eeway must be given to parliament because parliament knows budget! and have to make toughcalls = not for judges to go back and decide if they should be spent money in a different area

If choice of government is constitutional! court must determine if falls within range of reasonablealternatives. does not command perfection

o )arliament does not have benefit of hindsight as court do! so courts have to see if what they

did was reasonable! not to see if what they did was not the best and most perfect way

A- is the limit prescribed by law8 If a matter is not prescribed by law it cannot be justified

egulations are prescribed by law

$4#@: actions +ie police misconduct- are not prescribed and do not meet s . standard

Dsually not regulation but here prov has control over highway88

4ther side: charter infringing provisions should only be adopted by primary legislation to notovere,tend regulatory authority

$ot the case here! photo r2mt has been accepted for decades

(- Is the purpose pressing and substantial * valid objective8 )urpose was to prevent identity theft and is an objective that is part of a larger goal of ensuring

integrity in licensing system

#his is pressing and substantial Larmoni'ation across provinces is also a factor

At this point: concluded the limit is prescribed by law the purpose of the limit is pressing substantial (OW: does s 1 save it

C- Are they proportionate8

i6 is the limit rationally connected to the purpose

)rovince must show that the photo r2mt is rationally connected to the goal of preserving integrity ofthe licensing system by minimi'ing the risk of identity theft crt agreed

Kvt has to be able to show reasonable to suppose that putting photo on licence further limits ofgoal of preventing identity theft

Court needs to show that it is reasonable to assist the goal not that it actually does #he court was critical of the CofA for e2uating this test with the other part of the test that balances th

positive and negative effects #he coa conflated this stage w stage that balanced pos and neg effects +must keep them straigh

;AO@ SD@ 7L@$ %4I$K 4AO@S * D %4 $4# C4$95A#@ S#AK@S 49 A$A56SIS

ii6 does the limit minimally impair the right

Another way: is there another way to achieve the same goal without infringing the right8

$ot about whether driving is a right! it is about whether limit is least drastic impairment of the right


18/110

So we give the legis a measure of deference * to be min impairment needs to fall within reas rangeof alternatives

$eed to 5I$O min impairment to still achieving the objective

$eed to find the least harmful measure )arliament need not come up with a perfect law

easonable range of alternatives

Court need not be satisfied that alternative satisfy objective to e,actly same e,tent

It is a balancing act

If there are not any alternative = minimally impairing

o In this case part of comple, regulatory schemes for emerging problems provincetailored it and minimi'ed its impact on colony members

o Claimants compromised provinces goal and just asked for an e,emption

o 4nly way to reduce risk of identity theft is to have as much as possible a universal photore2uirement

o 5ook at the goal and does look at it too broadly into every single situation +i"e" not everyon

has a drivers license- * it is not trying to stop identity theft altogether it is just trying tomaintain the integrity of the licensing system * this is a narrow approach

6es! minimally impairs: it is within a range of reasonable options available to address the goal ofpreserving integrity in the system"

All other options would significant increase the risk of identity theft 5ess drastic measures need not be considered if they will not achieve the objective and

somewhat practical

;E/;: is there an a#ternative #ess drastic means o" achieving o)5 in rea# and su)stantia#

manner?

*ourt he#d no

$A47 C4$S#DC#I4$ of the object of the legis * modest goal of maintaining the integrityof the drivers license system so as to minimi'e the risk of identity theft which is assocd with thatspecific system +goal is not broad goal of limiting all forms of identity theft! but minimi'ing risk witrespect to specific driver licence system-

So we can see how identification and definition of legis objective can have significant impactanalysis of minimum impairment

;in impairment under charter is conceptually distinct from reasonable accommodation in humanrights law

iii6 is the la proportionate in its effects7

Ask: are the overall effects of the law on the claimants disproportionate to the governmentsobjective8

(road and practical assessment of the law

%oing a harm * benefit analysis impact of law on individual society

Court gives some teeth to the last step of the 4akes test

Says the first B steps in the analysis are anchored in the laws purpose

4nly the fourth branch takes into account the severity of the effects

Court says: even if there is no other alternative and it is a minimal infringement we need toassess the severity here

5imits that amount to a compulsion in matters relating for instance to religious belief will be veryserious

So what is practically at issue in this stage is a broad assessment of the law! its values and itsimpact on the individuals who are challenging the law

7hether deleterious effects outweigh society interests

Kood things


19/110

o @nhancement and security of licensing scheme

o Assisting in roadside safety

o Larmoni'ing licensing scheme through jurisdictions

4ther benefits e,ists but these are sufficient as long as they outweigh the bad

(ad things to individual community +seriousness of limit varies from case to case-

Simply saying it infringes right is not enough! need to show how it does

If this law compelled someone to practice religions that law is incredibly bad +fail at first stage of$a%es #est-

o Impact of this law in this case was that they couldnt drive into the markets to sell theirgoods

o (ut they could hire people to drive for them

o It is going to be a costly problem though to hire drivers to drive for them

o A limit on a right that e,act costs does not affect a right to choose to practice religion

;E(:$eed to weigh out effects +deleterious effects vs" salutary +helpful- effects-

Although e,pensive alternative! can still practice and the benefits of the inclusive system faroutweigh the negatives deleterious on low end

It is proportionate

%- Conclusion on justification

#he limit has been justified under section .

ain oints:

know and understand steps in oa%esfor justification on rights per s . charter

understand stringency of review

understand not fi,ed and rigid * applied fle,ibly taking into acct conte,t of law E issue

central element in s. is Fminimal impairmentG

in R(R Mc.onald:the gvt must show that the measures E issue impair the right of Pfreedom ofe,pressionQ as little as reas poss in order to achieve legis objective need to be carefullytailored

o sums up amount of balancing we have to do

Section 1 Test1) Valid Objective must bepressing and substantial2) Proportionality Test

o need a rational

connection (to theobjective)

o minimal impairment***

o Law proportionate in Its

efects


20/110

Lecture !: Wee> 7 Friday

*@R;ER @


21/110

o ie" s .. * Fany personG

o see slides for more e,amples

o diff language used wrt diff sections to categori'e3talk about the subjects of these sections

Fciti'enshipG * can assume means in terms of our immigration policies

but what about FeveryoneG or FanyoneG8 if we use Fciti'ensG in other sections!

everyone must mean non>citi'ens so u don&t have to be a citi'en or resident to claim benefits of the charter

- "ingh:immigration case" Involved denial of refugee claim" Court had to determine whether there

was a violation of s " SCC says term FeveryoneG in s incl every person who is Fphys present inCanadaG * so once on Canadian soil! entitled to protection of charter" #his makes our immig andrefugee processes so complicated" As soon as u touch Canadian soil! u have the benfit of thecharter"

- 7hat about cororations?#hey are legal persons"o Hunter:corp records being sei'ed per securities legis" Corp claiming violation of s0 *

FeveryoneG has right"- S 1b* incl things like free of press! media

o 7ould be hollow right if not granted to corps

- (ut there are some rights that irrespective of fact that says FanyoneG FeveryoneG etc have beenheld to be unavailable to corps

o eligion! e2uality +essence of business is competition- s no liberty! s ..+c-! .B and .? *witness rights

o Implication of these e,clusions is that corporations are precluded from claiming 1?remedies from being violated from these specific rights

o (ut there is a small caveat here bc corps can still have standing to raise charter right as adefense" So while a corp cant claim freedom of religion! but if they are charged with a lawthat violates freedom of religion they can claim as a defensethat it violates religion

- Big M .rug Marto Against corp for opening on Sundays * violating prohibition on Sunday shopping

o As a defense they said this violates freedom of religion

o L@5%: valid argument for corporation to make this right the grounds as a defense

o 7hy is that8 $obody corp or otherwise should be subject to an unconstitutional law * sothey cannot bring claims but can defend and challenge the validity of the law +as per therule of law-

/ection !&13:- 7ho is subject to the Charter8 7ho is re2uired to act in accordance with it- %ebate about the e,tent to which the breadth of the charter should be given- )arliament! legislature! provincial govt- Should it apply to the common law8

o Contracts! torts! etc * are these outside of it bc they are governed by C58

o #here were early proponents that said the charter should be circumscribed to onlygovernment actiono (ut others argued s 1 made the charter applicable to all actions * public and private

because s1 says that any sort of law or legis action that violates the consti will be of noforce or effect

So the proponents of this theory believe all s B1 meant to do is be emphatic about

fact that applies to all levels of gvto So not only is government bound by all actors should be bound bc the notion the

constitution is the governing lawo %ebate resolved in .olphin case basic test comes from this case


22/110

Dolphin Delivery- 9AC#S:- )urolator Inc" is on strike and their trade union is the 7%SD +repd empees of )uralator-- #here was a clause go see book- )urolator locked out employees and shut down (C office leaving pretty much 4ntario office- )urolator is connected to Supercourier- )rior to the strike %olphin %elivery delivered packages locally for )urolator +about 1JT of

dolphins business-

- 7hen )urolator went on strike! dolphin started doing business with Supercourier- 7%SD went to the (C labour relations board for a declaration that supercourier and dolphinwere allies of )urolator and they should be allowed to picket them as well (oard declined there2uest on the basis of no jurisdiction* said it was jurisdiction of the federal labour code whichdid not include a section on secondary picketing it "e## to the 5urisdiction o" the *L

o $ow went to the common law tort of inducing breach of O

- 7%SD said they would picket dolphin unless they ceased business with Super- As a preventative measure! dolphin sought an in)unctionto stop it +before it had taken place- *

wanted to prevent them from picketing"- (asis for pickets was to induce breach of contract bc then dolphin would not meet its obligations

and be in breach of contrt +tort of inducing breach of k-

- .st

level court granted * then appealed and said it violated 1+b-- %oes Charter apply! as injunction was granted8o 7%SD said that they are infringing their freedom of e,pression rights

o )relim 2: is picketing a form of e,pression that can be protected under this right

ISSD@S:o %oes the injunction restrict freedom of e,pression under 1+b-

Is 1ndary picketing violating 1+b- and if yes then cant get injunction on it

o Does the *harter a#y to the *L?

o Does the *harter a#y to rivate #itigation & rivate arties 4 RWD/ and D are

rivate actors8 no gvt #in>age3?o If it is found that the injunction restricts 1+b- is it a reasonable limit under s .8

A$A56SIS:eting is eace"u# and the other asects o" the ic>eting are notsu""icient to remove it "rom rea#m o" "ree o" eression 4 ,i## )e ua#i"ied

o @>a so #ong as economic asects are so strong to override the urose o" the

ic>eting then ic>eting ,i## )e eression rotected )y the *harter- ight to freedom of e,pression is not unlimited:

o %oes not e,tend to threats of violence or acts

o %estruction of property

o Assaults

o 4r other clearly unlawful conduct


23/110

- (D# freedom of e,pression was here and was peaceful- Court assumes peaceful- (ut bc injunction violates free of e,pression * need to run through oakes test to see if this is a

lawful limit on freedom of e,pression/ 1 o" the *harter > obiter- Since inducing a breach of O is a tort! is an injunction based on that tort which can limit freedom

of e,pression a reasonable limit8- )icketing shouldnt be permitted to harm others

- Ha#id o)5ective: ensure !

rd

arties not harmed 4 rationa##y connected: yes 4 minima##yimaired: yes )c not reventing ic>eting "u## sto 5ust secondary ic>et at )usinessunconnected to the )usiness

- Did conc#ude it to )e a reasona)#e #imit )ut didn2t thin> it necessary to discuss- (igger 2uestion now is does the charter apply to the common law

Does *harter a#y to *ommon La,?- 6@S" #he court almost takes it as a given- s 1+.- of charter says any law that is inconsistent with constitution is invalid * says anyso must

be applied broadly- P1Q

- Cl governs great number of rights in society and to e,clude application to C5 would be whollyunrealistic and against clear and plain language of Charter

Does the *harter a#y to rivate #itigation?- )urpose of charter and rights is to regulate relationship b3w government and individuals! to

restrain government actions and protect ppl- Absent government connection * $4 %4@S$# A))56 to private disputes- (ut govt means legislative! e,ec3administrative- See PB/Q: where party A sues ( and relying on C5 and no active govt relied on then charter does

not apply- (ut nevertheless they say we may need to apply charter valuesin this conte,t

- 7e need consistency w charter values * charter not diry applicable! but can apply ch values- Charter indirectly influences the decision in this sense- Lere no govt reliance therefore Charter does not apply directly- #his decision is subject to criticismfor not applying the charter to this case +this is far too narrow

o Argue that charter should apply to the C5 e2ually to the statute law bc it is fundamental to

our system of lawo It is irrational distinction of having the charter apply to Uuebec who has a totally codified

law * so everything will be governed by the charter but the rest of Canada is mostly C5 soit wouldnt apply to the rest * that is irrational and a parado,ical effect +same relationshipsin the common law3civil code wont be e2ually protected by charter-

- 4ther arguments: the other perspective

o Charter is a chec> on gov2t action* not intended to act as mediator for private individua* it would violate our freedom of O for e,ample method of being able to check power ogvt over individual and if were to open to all gvt action! Fwould seriously interfere""G +laforest-

ie" if charter applies to every rship! all well be doing is litigating those rships

o $ot intended in absence of government action to be applied in private litigation = problem

that could arise with court resources! not able to deal with it widens scope of charter toapply to essentially all private litigation contrary to the purpose of the enactment

- *O(*LDE:yes Charter will apply to the Common 5aw but need a government actor involved- U in dolphin- B; shou#d charter a#y to court orders?


24/110

- Court said no * cannot apply to action and decisions of courts but subse2uent cases in differentcircumstance have said in limit circumstances to apply +but also in that case no legis E issue!purely priv dispute * in subse2uent cases! courts have said yes! ch will apply to court decisions!ie" where courts issue orders of its own motion not based on the submissions of the parties! willapply where the proings involve a gvt party * so this will be every crim case bc crown is alwaysother party in crim case * and will apply where proings are purely private but governed bystatute! as opposed to C5-

- &


25/110

Church argued that the C5 of defamation had not evolved with Canadian society and our currentsystem placed far too much emphasis on protecting the reputation of plaintiffs at the e,pense ofdefs freedom of e,pression

o (asically! the church and lawyer are arguing free of e,pression right to make false stmts ithe courthouse

o Argued this is inconsistent w charter free of e,pression * cant be justified

So by suing for defamation! the crown attorney is violating the churchs right to say what theywant

Argued tort of defamation was inconsistent with the Charter and could not be justified

Church argued this is obviously government action bc L was crown +govt- prosecutor and charteshould apply directly bc statements were made against him in his course of duties

Court rejected saying the comments were made at the attorney as an individual and the crown

attorney was a private citi'en bc he brought the action to vindicate his own reputation not bringinthe action on behalf of the govt! in official government capacity

o 5awyer as plaintiff party bringing claim bc of his personal rep! not in his official gvtcapacity so charter doesn&t apply diry

Churchs 1ndargument: defamation needs to be interpreted in a private manner consistent withthe charter

Affirmsdolphin:

o Common law needs to be consistent with charter values in private matter

o Court must modify C5 where common law is inconsistent with charter values

/o using ch va#ues8 the court can modi"y the *L

(ut the court finds no basis to do this in this case

(D# this does not mean we need to adopt DS standard of malice in defamation suits +iemotivated by actual malice-

So court says charter will apply to C5 only to e,tent C5 is found to be inconsistent chartervalues

(ut where found to be inconsistent! court will modify the C5

Lere the $nus is on challengerto prove C5 is in fact inconsistent w charter values and needs tobe modified

So if in doing does ch apply analysis! and u find no apply! then u still need to considerwhether3not ur C5 * what is being applied in the case * then may need to modify the C5 to makeit consistent w charter values

What constitutes gvt action "or charter?

- %olphin says only applies when gvt action but did not define govt action for purposes of theCharter

M&inney v 'niversity o% (uelph

9AC#S: #his case involved 0 professors and librarians at universities who argued mandatory retirement a


26/110

#he appellants argued that uni is part of gvt within meaning of s B1 of the charter

therefore applies" #hey say this bc uni = creatures of statute so created by prov staand carry out pub function per statutory authy and receive pub funding"

A$A56SIS

Does the *harter a#y?

B1 analysis again! not intended to apply to private parties

In .olphinthe court limited the application to parliament! legislatures and the e,ecutive andadministrative branches of govt

(D# he left open the possibility that the Charter would apply to delegated leg! regulations! ordersin council! municipal by laws! and by laws and regualtions of other creatures of parl or leg

Argument .: part of govt bc creature of statute9AI5@%

;cOinney argued university = within meaning of B1 bc it is a creature of statute which e,ercisespowers pursuant to statute

(D# mere fact that an entity is a creature of statute doesnt mean charter should apply

If this was enough then every private corporate actor would be subject to the charter

Argument was that the legislature cannot authori'e action by others that would be in breach of thcharter

(ut the charter was not intended to cover activity by non>governmental entities created by the

government %etermined that a public creation is not enough! not ade2uate test! not issue at hand

#hey were also working on their own accord * not govt

#his was an indoor mgmt tool

94CD@% 4$ %A6 #4 %A6 4)@A#I4$S and concept of academic freedom

Dnless it is established that they form part of government! the universities action here cannot falwithin the ambit of the Charter8 #his cannot be answered by merely looking at the fact that theyare incorporated! and they have in important public function" 4ther institutions like railroad andairlines have important public functions but they are not government entities so as to fall withinthe scope under s B1"

Argument 1: bc serve public purpose9AI5@%

;cOinney also tried to distinguish companies for commercial purposes +bc those would involveengaging in Os which can inevitably reach charter rights- and those serving a public interest

)ublic service is not enough! lots of corporations in society that do this but are not part of thegovernment +)earson airport * important service! highly regulated but private-

o = public purpose test is inade2uate

manage their own affairs

uni subj to gvt regu and depend on gvt funding but manage their own affairs internallyArgument B: bc get public funding9AI5@%

Dniversity spent those funds! govt does not direct how they should be spent

In this case! no government policy actually trying to implement

o $o government responsibility for their actions * own governing body so the uni manages processes according to own needs as they see fit

o %o not have obligation to act in accordance to government

o esponsibility to university and not government

o Kovernment does not have legal power over the university

7hile universities fate is largely in the hands of govt but many other entities that receive funding

#he rship bw empor and empee rship was not a gvt rship * so in managing day to day affairs

uni is not a gvt actor" Although the court did say uni not a gvt action so policies on mandyretirement not subj to charter! they did go on to find that the L code was subj to charter! and didviolate but subj to s .


27/110

L@5%: not part of govt > not govt actors +went on to say it violated . but then justified under s .-o So mckinney was out of luck here

(D# ;ay (@ %I99@@$# I9:

o Kovernment delegates authority to entity

o Kovernment legally controls entity

o @ntity carries out a government policy

o Acts on behalf

Charter does not apply to universities +but court took diff approach in .ouglas-

Douglas v Douglas #ollege

Involved mandatory retirement at community college in (C

Affairs managed by a board that was appointed by a minister who was allowed to approve all bylaws of the board +more day to day involvement of govt in this board-

Consider:

o Kovernment created community colleges

o College managed by board appointed by govto Kovt approves bylaw of the college

o Kovt provides 0BT funding

Since directed and controlled as agent of govt by board and oversight minister obtained

So they were gvt actor

#hey go to lengths to distinguish ;ckinney saying although govt may choose to permit the collegboard to use some discretion the board is appointed and removableat pleasure by the govt andat all time the govt by law can intervene and take over management +directs its operations-

o #he gvt at E all times direct its operation

o )art of gvt operations in form and fact

o In performing functions college carrying out acts of gvts

o Lad a status that was wholly different then universities

o Dniversities = autonomous

o Colleges = directed and controlled by gvt

ELD: ,as a govt actor "or charter uroses

O;ER EP@


28/110

o @ven if receives funding and implementing a policy then even still their day to day

operations will not be governed by the Charter

)ldridge9AC#S:

%ifferent situation! hospital services in (C are funded through the govt delivery of health careservices

A private instituted used to provide free medical interpreting for deaf people * but did not have

funds to continue Appellants were deaf prov did not provide sign language interpreters

%id provincial failure to provide interpreters breach s . e2uality

osita# argued:cant afford to do this for everyone and this would open floodgates

@e##ants:failure of these services puts us at risk of misdiagnosis or improper trmt bc incapablof participating in same conversations

(ut ministry countered by arguing that they dont cover everything: you need to go out of pocketfor those things: crutches! wheelchairs etc and sign language is the same as these things we donot provide"

Issue: whether and in what manner would Charter apply to this as part of publically funded

schemeA$A56SIS:.- %oes the Charter apply to the ;edical Services Commission and Lospitals8

%iscusses a few cases:

.ouglas:charter did apply to mandatory retirement policy bc %ouglas College was government"Implemented policy" Kovt directed its operation" #he empowering act described it as an agent othe crown

Lavinge: was prov govt" Act only gave the minister power to conduct and govern and to beFassistedG by council by effectively same as douglas"

5egislatures cannot enact laws that infringe the charter

(ut bc they cant do that then they cannot empower another actor to violate your charter rights

Di""icu#ty:stems from entities that are not clearly autonomous from govt where the separationbw the corporate entity and the government is not clear

o Can be independent from govt in some respects but in others just delegating govtinitiatives

o If the entity is determine to be part of the 4fabric of government5then the charter is going tapply to it in all respects +ensures that entities do not escape charter scrutiny-

o (D# if not governmental in all aspects +private but carrying out govt action- then charterwill still apply but only to those aspects that are governmental in nature +to make sure thatgovernment isnt delegating the power to have it avoid charter scrutiny * so govt cant doindirectly what it can do directly-

o Specific factors are not clearly identifiable

In certain situations Ppara ?1Qo In order for the charter to apply to a private entity it must be found to implementing a

specific governmental policy or program" (ut mere fact of govt function is not sufficient totrigger charter app

o 7hat does the charter affect If the entity falls under government under s B1 of the charter then all of the activities

of the entity will be subject to the charter %o not investigate into the nature of the entity! but the nature of the activity itself" If

the act is truly governmental in nature then the entity performing it will be subject toreview under the charter! but only in respect to that act"


29/110

%F E(;%;C %/ FO(D ;O BE


30/110

o (c before this the school could say we are private and free to do what we want

o (ut bc Alberta law was held to violate charter and had to include it! the private entity nowhad to act in accordance with the right bc it was infused in provincial leg

+ridgen v 'niversity o% #algary

) and several other students disliked their professors

)ublic university and students not happy with 2uality of their professor and put up fbook group tovent about the teacher

Kuilty of non academic misconduct by the university and they were disciplined under the post>secondary learning act

;any comments critical of the teachers skill! etc"

#he dean imposed sanctions on ppl who were members of the fbook commy

Some did not participate and just liked

(ut all involved were held up on disciplinary hearings for misconduct

(ut they were made e,amples of

#he punishments seemed completely out of touch and disproportionate

)relim 2 %oes charter apply to Dni

Students argued that Calgarys disciplinary orders violated their freedom of e,pression

Dni says no! but 2uestion if charter appliesN $eed to show that uni is charter actor for the charter right to apply

Is uni a charter actor8

Court needed to distinguish ;cOinney +relied on by ;cOinney says discipline is at discretion ofuni and not a charter actor at large and shouldnt be subject in these regards-

Court held: the ability to discipline students at all is from this legislation +)5SA Act- * the uniwouldnt have any authority to discipline without it

So those actions had to comply with the charter and found that they did not

#hroughout the entire process the students right to freedom of e,pression was denied andinfringed and it could not be saved under s .

Lere not a day to day policy even though uni argued very strongly for that Ces charter a#ies

Ces "reedom o" eression to underta>e this action

C


31/110

o )aved the way for national firms

o Issue here was mobility rights and lsua couldnt curtail mobility rights of lawyers

o Subject to charter

U1:(odbout v ,ongueuil

Is the municipality bound by the charter or can they curtail mobility rights8

;unicipalities are corporations that e,ist only via provincial law that creates them

(ut they are also elected bodies and have powers of ta,ation etc set policies that citi'ens have toabide by

#hey are essentially governmental in nature

#hey are responsible to an electorate

;ost indicia of govt is present despite being creature of statute

So regardless it is a corp setting restriction on what its employee can or cannot do it is govt innature and cannot do this

.// B SC 0??check name

day to day function it is government in form and framework

Court held mun are gvt! actions are gvt in nature * they are created by stat in a way that is diff

from the way normal corps are and they have gvt functions * empowered to make laws andadminister municipalities so created by the prov to provide a more locali'ed gvt response tosituations * provinces governed by charter so ms gvt in nature

So yes m = gvt actors for purpose of charter bc all their power derives from stat and are gvtanyway * function like a gvt! enact bylaws etc"

5ook at 2uality of actor

UB:

evisit this problem after we do search and sei'ure

Charged for poss of m in his jacket he was asked to prove age at tavern and asked to leave" Lre>enters and is 2uestioned by manager" ;anager told him he was Hunder arrest for re>entering

without I%" Le was asked to put contents of jacket on table and employee reaches in jacket andfinds ; in jacket" $eeded to find out accuseds age

Does the charter a#y to this search )c not )eing ta>en out )y the o#ice )ut )y rivate

security guards


32/110

Lecture . Wee> -: ;uesday

FREEDO OF EP


33/110

o #he right to e,pression that is guaranteed by s1b of the charter is conceived of as a

negative righto * not interfere with e,pression

o * not a positive obli on the gvt to prodivde protection or offer assistance in relation to

e,pression- 7hat is a negative right8

o A right to be free from gvt interference in the e,ercise of e,pression

o Absence of coercion and constraint on e,pression imposed by the gvt

o It is Fnon interferenceGo (ut this does not mean s1b cannot everrecogni'e a positive right +statements from SCC

where there may be circumstances for positive right-o (ut this is an e,ception to the positive rule

Baier v 'lbertalater" $arrow test: (D# 9@7 #I;@S CA$ ASS@# )4SI#IM@

IKL# @: 9@@%4; 49 @V)@SSI4$"7hat is Fe,pressionG8

o %efined e,ceptionally broadly

o #he argument that a particular form of e,pression3speech is not worthy of protection is notgoing to succeed because it is defined in unlimited sense"

o F@,pressionG in Canada * the content of what is being e,pressed is irrelevant to determine

whether the e,pression = protectedo %irect contrast to the American approach: which accords mere absolute protection to

FworthyG typesof e,pression +no s . limitation or justify section-" (ut the way the DSaccomplishes this is by defining e,pression narrowly * so they can limit or e,clude somespeech that is morally repugnant

o 4ur SCC adopted a diff approach * because we have s . justification

o 7e give e,pression a (4A% defn with virtually no internal limitations

o #o curtail this e,pression * need to do this at s . stage! not when deciding whether3nothave e,pression +@AS4$A(5@ 5I;I# A$A56SIS-

o >eegstra:in my opinion! inapprop to attenuate 1b freedom on ground particular conte,t

re2uires such" 7ide! liberal approach to be givenNindicates the preferable course is toweigh various conte,tual factors and values under s ." So not w3in free of e,pression itsel/o #ong as eression has some communicative urose8 recogni+ed under &)8 andvirtua##y a## eression has communicative eression$

- An activity will be e,pressed if it attemts to convey meaning- !rin toy:court made it clear that commercial speech is protected" ight of toy manufacturer to

advertise prducts for commercial purposes" Ubc legis challenging prohibited ads targeted EchildrenNso in deciding the case! the court sets out & stage "rame,or> "or the inter ana#ysiso" s&) c#aims

o 9irst stage = definitional define the activityany activity that conveys or attempts toconvey meaning ? defined as expression

Dse of the word Hactivity is not an accident in this conte,t but deliberate In some circs! e,pression will take the form of activity or actions

So actions without words can convey meaning SCC used e,ample of parking your car * ordinarily this has no e,pressive content"

(ut if shopping Centre reserves spaces near door for married ppl w children only!and ur not married and park there * then e,pressive element"

Can be verbal! gesture! written! action! etc"

o @ctions can have eressive meaningS

o Second stage = determine whether3not been a violation * need to distinguish bw contents

based and effects based restraints


34/110

Content based = laws or practices or actions that have as their purposethe

restriction of a particular form of e,pression +ie" the law of defamation! restrictionson ads! restrictions on pornography! hate speech etc"- * the restriction is aimed atlimiting the content of what u can say or do and a particular content of thee,pression that is Hunacceptable

So w3 content basedaimed E content itself

Koal is suppression of that particular content @ffects based = aimed E some other aspect of the activity but incidental or ancillar

impacton freedom of e,pression So prohibition is aimed E some other element of the activity that has the

effect of limiting your e,pression

Ie" laws against littering * which are aimed E something unrelated toe,pression +environmental- but can have an impact on e,pression +ie hirehelicopter and drop .JJJJ leaflets on city * but littering laws prevent thise,pression- In its effect it is preventing from engaging on e,pression +indirecimpact-

If claiming charter protect re: effects>based restraint! need to show activity in2 relates to the B underlying values of e,pression above * mktplace of ideaspoli debate! self fulfillment3flourishing

Dnder the broad defn = SCC has touched on things like child porn is validform of e,pression under part of 1b! but valid limit under s .

- So most of the analysis is at s . stage 1b is easier to satisfy"- #he only e,ception is direct e,pression manifested in a violent form- Miolence is $4# protected- ;urderer! rapist! terrorist activities cannot claim 1b e,pression- #he 94; 49 64D @V)@SSI4$ is what is relevant! $4# #L@ C4$#@$#- In "uresh:perpetrator of act of violence cannot claim 1b freedom of e,pression- So in >eegstra! even hate speech = valid e,pression under 1b constitutionally protected

O@6 )4I$#So @,pression = e,pression for 1b if conveys or attempts to convey meaning

o 4nly the form is relevant to defining e,pression not content

o 5arge and liberal interpretation * similar to other consti3charter interp! but we consider the

conte,t of our other values in the conte,t of s.o 4nly e,ception = violence

o Ken speaking! 1b only protects a negative right unless can bring into positive right factors

+(aier-

R v &eegstra

B./ CCC +1- of criminal code: @very one who! by communicating statements! other than in privatconversation! willfully promotes hatred against any identifiable group is guilty of

o +a- An indictable offence and is liable to imprisonment for a term not e,ceeding two yearsor

o +b- An offence punishable on summary conviction

B./ CCC +B-+a- gives a defence of FtruthG to the willful promotion of hatred but only where Aproves the truth of the stmts on the balance of probs

9AC#S:

Dsed position as high school teacher in Alberta to promote his hatred towards ews and saidLolocaust did not happen and was made up for sympathy anti Semitic ideas +identifiable group-

Also tested the students on it and if they failed to reflect his teaching their marks would beaffected


35/110

7as fired and then claimed s B./ violated his s 1+b- rights

Clearly hate speech * and that is what B./ is meant to protect3restrict

$o other value e,cept to inflict hate * but this isnt really what we talk about w 1b

(ut this is what B./ is meant to protect * protecting disadvantaged groups from hate speechdirected at them

Court unanimous that hate speech does convey meaning +hatred-! so it is e,pression protectedby 1b

Court followed the analytic framework in !rin #oy

ISSD@S:o %oes B./+1- infringe 1+b- +aka does 1+b- e,tend to the public and willful promotion of

hatred against an identifiable group-o If yes! can it be upheld under s . as a reasonable limit8

o %oes B./+B-+a- infringe the presumption of innocence under ..+d-

o If so! can it be upheld under s . as a reasonable limit8A$A56SIS:

)urpose behind self>e,pression

1$ Does s !19&3 in"ringe &)3

rwin Toy

o In this case toy comp wanted to advertise for commercial purposes and was targetingchildren" Uu legislation prohibited the ads from being directed at children W.Byrs old" Leldapplied to corps and set out this process

o S#@) .: does the activity fall within the protected 1+b- sphere8

o Activity is e,pression if conveys meaning

o So if the activity conveys a meaning it has e,pressive content and is prima facie in 1+b-

regardless of the particular meaningo Dse of activity is significant bc it means e,pression need not necessarily take the form of

words and actions may have e,pressive content and that could be protected +e,amplegiving the finger is e,pressive and allowed-

A))56: communications which promote hatred clearly convey a meaning and had

e,pressive content %oesnt matter what the meaning is

SA#IS9I@% * therefore e,pressive per 1+b-

#hey rejected the argument that hate speech should not even get past this part of

the analysiso S#@) 1: is the purpose of the impugned provision to restrict freedom of e,pression8

o If the effect of the action $4# the purpose restricts an activity then 1+b- is irrelevant *needs to be the purpose

o Content based restraints and effect based restraints

o Content = laws or practices or actions that have as their purpose the restriction of a type o

e,pression RR aimed to suppress the e,pression of the specific type of content +defamationrestriction on ads porn-

o $ote: porn is protected (D# limits gets justified under s .

o @ffect = aimed at collateral aspect of the activity" $ot intended for the law to limite,pression! it does so incidentally +e,: law against littering-

o for effect need to show the activity of e,pression is in one of these purposes * so littering

is connected to one of these underlying principles protected by 1+b- A))56: Koal of s B./ is to stop hatred through speech! which does restrict freedom

of e,pression clearlyo ELD: %(FR%(E/

Cron 'rguments for not infringing:


36/110

o Miolent acts are an e,ception +as in .olphin delivery too * said the guarantee to picketers

would not e,tend to protect violence-o Miolence is not protected

7hy8 (c these forms of e,pression are contrary to values supporting freedom of

speech $ot a physical act here though

o #hreats of violence also are e,ception

#hreats of violence can only be classified by reference to the content of their

meaning * $4# an e,ceptiono Court says a murderer cannot invoke freedom of e,pression for justification for their

violenceo @,ample: /3.. clearly e,pressive but not protected under 1+b- bc it manifested itself as

violence

Relevance of other Charter provisions

o Argued ss . +e2uality- and 1 +multiculturalism- and international obligations should

e,clude propagandao 7hen looking at e,pression violation! it must be content neutral how it relates to other

rights! you look at this under s. test

RR1+b- analysis is concerned with the form $4# the content

&$ *an it )e 5usti"ied as a reasona)#e #imit under s 1 )u#> o" ,or> comes here

O@KE/ ;E/;

7hen using s .! it is a case by case analysis = no rigid test as must conform to each individualtest

;ust look at the values underlying the Charter +see last week- and the circumstances of theparticular case

$eed to apply s . in a conte,tual way

$4#@: >eegstrarelied on the DS first amendment in weighing the competing freedoms andinterests

o Late propaganda is criminali'ed > the trend here is to protect offensive! public inventive

o 7hile Americans have has constitutionally protected rights for 1JJ yrs we need to becritical

o 7L68

s . plays a critical role in this analysis and there is no DS e2uivalent

also e2uality and multiculturalism in out charter re2uire a departure from thinking

hate propaganda is incompatible with freedom of e,pression * which is how the DSviews it

@3 rescri)ed )y #a,

o 6es

B3 O)5ective 4 ressing G su)stantia#?

o )rinciples essential to free and democratic society come into play here * respect fordifferent groups etc

o Court recogni'es that although simply words it has real harm to two types

o Court points to importance of factual circumstances +conte,t matters-

o It is not a rigid or formulistic approach to @free and democratic society&

o + pressing and substantial ob)ectivesA B3 "P3C!/!C

o 13 ;,o tyes o" in5ury caused )y hate roaganda

.- Larm done to the target group

1- Affects society at large

o &3 @#so genera# in"#uence on society at #arge: eo#e are easi#y ersuaded


37/110

)eople continuously start to believe things that you hear enough times

And there is fear that this belief could gain a foothold

Attract proponents to the cause! threats to self>dignity

Late speech can gain a fan club almost +snow ball effect-

o It is pressing and substantial concern that harm caused by hateful e,pression

o Court looked at other underlying values of ss . +e2uality- and 1 +multiculturalism- andinternational obligations should e,clude propaganda * reinforce parliaments objective inlimiting this type of hate speech

o SA#IS9I@% on this element *3 fulfillment by developing andarticulating thoughts

o B- )olitical realm

o Late propaganda does stop some ppl from trying to e,press what they want


38/110

o (ut! the degree of this limitation is not substantial +para /J-

o N even though some democratic process involved! hate propaganda underminesdemocratic processes

So hate propaganda is on the outskirts of the core goals of s 1+b-

Late propaganda contributes little to the values of s 1+b- in Canadas Charter

o RRRRR Late propaganda is not something necessary to the flourishing of human well being

and not necessary for political speech

If not in this core of protected right! s . test is easier to justify restriction

Criminal prohibition of hate propaganda rationally connected to the objective of protecting targetgroups8

Seems yes but doubts were raise where the actual effect of B./ is to undermine any rationalconnection bw it and objective

o .- it could actually promote the cause by giving them media coverage

Court did not buy this argument! yes we give attention but this is negative attention

because he is being prosecutedo 1- the public may view the suppression of e,pression as suspicious to make them think it

contains an element of truth

Kov disproval of hate propaganda is not provedo B- $a'is had similar laws and it did not stop their racism from triumphing

Kermany did have them! but we are not saying that these laws themselves can

prevent a Lolocaust all by themselves 6ou have to keep things in perspective

(ut rational connection in both theory and operation * 9IS# (A$CL 49 )4)4I#4$A5I#6#@S# SA#IS9I@%

ii3 inima# imairment

6es * the court finds minimal impairment here"

#he provision outright prohibits hate speech not merely restrict

So the Crown will have to show B./ is a measured and appropriate response to hate speech

;ain argument against B./ * it creates punishing e,pression that is not hate propaganda and isoverbroad

Lave to look at the specific features of B./ > reasons why minimal impairment:o %oes not apply to private conversations and e,cluded from s B./ * so private

conversations are not criminali'edo (ut is it nevertheless overbroad bc it captures all public e,pression intended to promote

hatred8 $o! bc the harm the govt seeks to prevent is not restrict to certain mediums and olocations

o Also use the word willful which means there has to be a mental element to it

;ore than mere negligence if Oeegstra was talking on and on! not just off the cuff

$eeds to be a specific intention to have that meaningo Court said

)utting in a proof of hated re2uirement is e,cessive

Still have to look at it from perspective of people bein

Canadian Charter of Rights

Documents

Transcript of Canadian Charter of Rights