Constitutional Charter AnalysisLaw 100 – Final Exam Outline

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APRIL 2ND, 2013As taught by Professor Gillian Calder

Table of ContentsHistory to the Charter and Constitution Act 1982..............................................2

Discrimination............................................................................................................................................ 2Roncarelli v. Duplessis [1959] SCR 121..................................................................................................2Union Colliery Co. v. Bryden [1899] AC 580 (JCPC)........................................................................3Cunningham v. Tomey Homma, [1903] AC 151 (PC)...................................................................3Quong Wing v. The King (1914), 49 SCR 440.....................................................................................3

The Bill of Rights...................................................................................................................................... 4R. v. Drybones [1970] SCR 282......................................................................................................................4Bliss v. Canada [1979] 1 SCR 183................................................................................................................4

Introduction to the Charter.................................................................................................. 5The Remedies: s.52 and s.24..........................................................................................................5Guarantees of Rights and Freedoms: s.1.............................................................................5Notwithstanding Clause: s.33........................................................................................................6Merits of Entrenchment and the Legitimacy of Judicial Review.........................6

Vriend v. Alberta [1998] 1 SCR 493............................................................................................................7

General Charter Analysis Framework...........................................................................7S.32 – To Whom Does the Charter Apply?............................................................................8

Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery, [1986] 2 SCR 57..........................................................................................................................................................8McKinney v. University of Guelph, [1990] 3 SCR 229..................................................................9Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130..............................................10

What is a Government Entity?.................................................................................................... 10Eldridge v. British Columbia (A.G.), [1997] 3 SCR 624.............................................................10Vriend v. Alberta, [1998] 1 SCR 493.......................................................................................................11

Remedies.......................................................................................................................................... 11Schachter v. Canada, [1992] 2 SCR 679..............................................................................12

Section One.................................................................................................................................... 13Prescribed by Law................................................................................................................................ 13

Little Sisters Book and Art Emporium v. Canada, [2000] 2 SCR 1120.........................13Reasonably and Demonstrably Justified – Oakes test..............................................14

Newfoundland (Treasury Board) v. NAPE, [2004] 3 SCR 381..............................................15Alberta v. Hutterian Brethren of Wilson Colony [2009] SCJ No 37..................................15

S.15 – Equality.............................................................................................................................. 16Andrews v. Law Society of B.C., [1989] 1 SCR 143.....................................................17R. v. Turpin, [1989] 1 SCR 1296.................................................................................................17The S.15 Trilogy – 3 approaches to s.15.............................................................................18

Thibaudeau v. Canada, [1995] 2 S.C.R. 627.....................................................................................18Miron v. Trudel, [1995] 2 SCR 418............................................................................................................18Egan v. Canada, [1995] 2 SCR 513..........................................................................................................19

The Law Test, Law Factors and Consequences.............................................................19Tomasson v. Attorney General of Canada, 2007 FCA 265.....................................................21

Later Modifications and the Addition of the S.15(2) Test.....................................21R v. Kapp, 2008 SCC 41.....................................................................................................................................21Withler v. Canada (Attorney General), 2011 SCC 12.................................................................22

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Hodge v. Canada (Minister of Human Resources Development) [2004] 3 SCR 357...................................................................................................................................................................................... 23Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 SCR 657.......................................................................................................................................................................... 23

The S.15 Tests as they stand in the wake of Withler...............................................24S.15(1)............................................................................................................................................................................. 24S.15(2) – The Kapp test, as modified in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37...................................................................................24

S.7 – Life, Liberty, and Security...................................................................................... 25The s.7 Test............................................................................................................................................... 26The Scope of s.7..................................................................................................................................... 26

Rodriquez v. British Columbia (Attorney-General), [1993] 3 SCR 519.........................26S.7 and Health Care............................................................................................................................ 27

R v. Morgentaler, [1988] 1 SCR 30...........................................................................................................27Chaoulli v. Quebec (Attorney General), [2005] 1 SCR 791...................................................28

S.7 and the Litigation of Poverty..............................................................................................29Canada (A.G.) v. PHS Community Services Society, 2011 SCC 44 – “Insite”.........32

History to the Charter and Constitution Act 1982 common law favoured individuals over community Bill of Rights – 1960 federal statute – still in force what was inherited in 1867

o English common law – protection of individual rights and libertieso political rights: participatoryo civil rights: liberty from governmental restrainto rule of law: government and the people bound equally by law

common law has always tended to value the individual over the community

Discrimination discrimination against Chinese and Japanese – reasons

o white superiorityo xenophobic – fear of othero economically motivated

Roncarelli v. Duplessis [1959] SCR 121Government of Quebec, the Catholic Church, Jehovah’s Witnesses; Jehovah’s witnesses seen as threat to Quebec values by practicing their beliefs in Quebec; Roncarelli was disturbed by the treatment other Jehovah’s Witnesses were receiving, Roncarelli arranged bail for some 400 Witnesses arrested during the first part of Duplessis’s “war without mercy” against the sect; Duplessis telephoned the chairman of the Quebec Liquor Commission, Judge Edouard Archambault, and instructed him to cancel Roncarelli’s licence; Roncarelli sued Duplessis personally. breach of an implied public statutory duty by the Premier gross abuse of legal power, exercised in a way that is not entrenched

anywhere

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it was the “right” of Mr. Roncarelli not to be the subject of oppressive, arbitrary government power part of common law system of rights

Union Colliery Co. v. Bryden [1899] AC 580 (JCPC)Discriminatory legislation in BC; s.4. Coal Mines Regulation Act – prohibits “Chinamen who are of full age from employment in underground coal workings”; shareholder commenced action, alleging that the mine was in contravention of the legislation. JCPC considered the question: is this a matter of exclusively provincial

jurisdiction, or was this legislation infringing on federal jurisdiction? i.e. discrimination treated as federalism issue

in pith and substance, this legislation is a statutory prohibition affecting aliens and naturalized Canadians only feds can legislate in this category by virtue of s.91(25) ultra vires

Cunningham v. Tomey Homma, [1903] AC 151 (PC)Electoral legislation in BC prohibiting persons of Japanese descent from voting; applicant was a naturalized Japanese Canadian who wanted to be placed on voter list in Vancouver. electoral list falls within prov. legislation, but is in pith and substance a

subject of federal legislation JCPC distinguishes Union Colliery

language of the section at issue does not deal with consequences of aliens or naturalization

privileges attached to naturalization are separate from nationality, and therefore not exclusive matters of feds i.e. pith and substance not about immigration and citizenship, but

things that attach to this therefore, this is a matter of prov. jurisdiction – fed. jurisdiction

will pertain only to ordinary rights of people to earn a living in a province

prov. laws imposing racial inabilities will be valid if they are believed to rest on accurate assumptions on racial difference

Quong Wing v. The King (1914), 49 SCR 440Sask. legislation made it illegal for Chinese employer to hire white women court attempts to confine its discussion solely to division of power issues

and looks at way Union Colliery was altered in Tomey Homma in this case, finds the legislation deals with property and civil rights –

so no matter how harshly they may bear on Chinamen, it cannot be beyond prov. legislation

court says in pith and substance, this legislation is the protection of white women and girls – and this a valid prov. purpose

this trend continued and in very few cases was the discriminatory legislation challenged or struck downo they were universally allowed to stand

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neither the dominion nor courts saw discriminatory legislation ultra vires provinces as long as it did not interfere with immigration

it became apparent that a federalism analysis is inadequate to deal with these types of issues

The Bill of Rights implied Bill of Rights

o Reference re Alberta Statutes [1938] SCR 100: “it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding it incidental mischiefs is the breath of life for parliamentary institutions … any attempt to abrogate this right … would … be incompetent to the provinces”

Canadian Bill of Rights S.C. 1960, c. 44o Canada was shamed for its treatment of Japanese in and around WWIIo disappointing interpretation

few decisions in which it was considered not sympathetically approached, or interpreted in a forward-looking

wayo still in force, rarely used

R. v. Drybones [1970] SCR 28294. An Indian who

(a) has intoxicants in his possession,(b) is intoxicated, or(c) makes or manufactures intoxicantsoff a reserve, is guilty of an offence and is liable on summary conviction to a fine of not less than ten dollars and not more than fifty dollars or to imprisonment for a term not exceeding three months or to both fine and imprisonment.

inconsistent with s.1(b) of Bill of Rights – equality Crown argued the law was not discriminatory because it treated all

Indians the same court held that the law could not be constitutional because it

treated all members of one racial group in the same discriminatory way the law made it illegal for a group of individuals to do something that

other Canadian were free to do

Bliss v. Canada [1979] 1 SCR 183Made it more onerous for pregnant women to apply for benefits in unemployment insurance; pregnant women had to demonstrate they were employed at moment of conception; everyone else had only to show that they had been working 12 weeks. no discrimination on basis of sex – all pregnant people are

treated the same “… these provisions form an integral part of a legislative scheme enacted

for valid federal objectives and they are concerned with conditions from which men are excluded. Any inequality between the sexes in this area is not created by legislation but by nature.”

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this is about benefits, unlike Drybones (it was an offence) – cannot use same standard to measure if they are unequal/unfair

However, later in Brooks v. Canada Safeway [1989] 1 SCR 1219 – SCC overruled themselves in Bliss – discrimination based on pregnancy is wrong.

Introduction to the Charter can democracy be realized in the absence of social and economic

equality? – how effective is a document protecting citizens from the government when the claims are rooted in re-distribution?

what real effect can the Charter have?o there are numerous test under the Charter, but keep in mind its real

effects– how will our clients be effected? 3 competing stories of how Charter came about

o international human rights movemento American model – attempt to put in place Canada something been in

US since 1770so national unification document – a way to quell Quebec nationalism

to have citizens look to the federal government for their most basic rights and freedoms

April 17, 1982 Charter came into effect – but not all sectionso specifically s.15 delayed for 3 years

structure of the Charter – must answer the following 4 questions whenever you answer a Charter question1) who has rights under the Charter?2) to whom does the Charter apply?3) what is the content of those rights and duties?4) when can the government override those rights?

s.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.o not in the Charter, but this is the provision that reaffirms judicial

responsibility for policing the powers granted in the constitutiono with the application of the Charter to gov., the significance of the

judicial review changedo arguments over judicial activism

The Remedies: s.52 and s.24 declarations of invalidity per s.52 – only available where laws are being

challengedo reading downo reading ino severanceo suspensiono constitutional exceptions

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s.24 has a bunch of other remedies availableo available where different kinds of action are at issueo ex. actions of customs officers, actions of police etc.

Guarantees of Rights and Freedoms: s.1 affirmation that the rights are not absolute – Oakes test infringement must be “prescribed by law”Application of the Charter: s.32(1) applies

o to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon territory and Northwest Territories; and

o to the legislatures and government of each province in respect of all matters within the authority of the legislature of each province.

need to connect whichever opponent you are addressing to the gov.

Notwithstanding Clause: s.33 this clause is a reminder of parliamentary supremacy

o targeted at those who critique judicial activism and giving judges the last word

only in effect for 5 years – so when gov. enacts something under it, must be renewed every 5 years

Trudeau’s political move – needed something to ensure Parliament would get the last word, but knew that any gov. that used it would be including political suicideo was used on every piece of legislation passed by Quebeco also used in Sask. by a labour dispute

Merits of Entrenchment and the Legitimacy of Judicial Review liberals – wanted no ss. 1 and 33 conservatives – suspicious of rights and freedoms social democrats – saw potential in individual to intervene somewhat a dichotomy between “state is bad” vs. “state is good and

should intervene in a self-conscious way on behalf of (vulnerable) groups” move to expansion of judicial review – federalism analysis was not about

if the law was good or not; now this has become the question critiques

o favour people who have wealth – it is expensive to litigate, and so the Charter only enables access for the wealthy

o Charter not able to deal with systemic issueso not participatory – did not arise out of public demando undemocratic – undo what legislatures were in place to doo some provisions are very effective at recognizing certain claims put

forward – but structure of Charter make some claims harder to bring than others – ex. redistribution

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o Charter rights are very individually focused – lack of class analysiso “in the Charter vision, the main enemy of freedom is not disparity in

wealth or concentration of private power, but the state. It is the state whose tendency to abuse power and hamper the heroic individual must be kept in constant check. … Although such fears are not groundless, their exaggeration makes liberals blind to the threat of unchecked private power and to the role of government as a promoter or liberty, particularly for the disadvantaged and the oppressed.” – Andrew Petters

defenceso makes law and politics more participatory – you have an avenue to

challenge the gov.o more proactive on civil rightso s.33 – embedded in the Charter gives the final say for the legislatureo Hogg and Bushell – about dialogue theory

conversation between the courts and legislature there are often legislative sequels to court judgments we have tradition of judgments having to give detailed reasons for

their conclusions any judgment can get overridden by legislature through s.1 and

s.33 statistical evidence: of 66 cases struck down, all but 13 had elicited

some kind of response Hogg and Bushell find that we have in Canada a weaker form of

judicial review that rarely defeat the legislature

Vriend v. Alberta [1998] 1 SCR 493Dismissal of a teacher because of his sexual orientation. Charter applies to government inaction as well as action remedy = read sexual orientation into the act

this is more like judicial activism because the court could have struck the provision down and sent it back to legislature

but courts knew it was unlikely that legislature would change the legislation

defence of the Charter and judicial review by Iacobucci J. this was the choice of the Canadian people – people were involved

around what the constitution was going to look like if Alberta is upset, it can use s.33 part of Iacobucci’s decision is also saying that the time has come to

take the necessary step to grant equality on sexual orientation

General Charter Analysis Framework1) s.32 – does the Charter apply? – test is set out in Dolphin Delivery

a. Charter duties only apply to government and government agents (Dolphin Delivery)

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b. the Charter does not apply to the judiciary as a branch of government

i. the SCC has expanded upon the notion, first articulated in Dolphin Delivery that while the Charter does not apply directly to the judiciary in its capacity as arbiter of disputes between private parties – it does apply to judicial decisions, even those involving the common law, where the government is a party to that litigation (as in criminal trials) or where the court is acting on its own motion for a “public purpose”

c. the common lawi. Halpern: at para. 29 “… it is clear and all parties accept

that, the common law is subject to Charter scrutiny where government action or inaction is based on a common law rule: see British Columbia Government Employees’ Union v. British Columbia (Attorney General); R. v. Salituro; and Hill v. Church of Scientology of Toronto

d. corporations are protected under Charter, but not under freedom of religion (RJR MacDonald)

e. a fetus is not a legal person, and as such, cannot hold Charter rights such as the right to life under s.7 (Tremblay v. Daigle)

f. Charter will generally not apply to actions outside of Canada with the exception of action that violates international human rights (Canada v. Khadr) (p.833); and with consent of the foreign state

g. Charter applies on foreign land where actions are of Canadian gov. officials and does not conflict legislation of another state

h. no protection for non-Canadians abroad against mistreatment by Canadian gov. officials abroad

i. can a non-citizen raise a Charter challenge? – depends on the type of right at issue

2) does a challenged law have the effect of limiting one of the guaranteed rights in the Charter?

3) if it has, is the limit a reasonable one that can be demonstrably justified in a free and democratic society?

4) if it is not, what is the appropriate remedy for the complainant under the circumstances?

S.32 – To Whom Does the Charter Apply?Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery, [1986] 2 SCR 57Governing federal statute silent on secondary picketing – thus had to look to common law; common law said secondary picketing is unlawful interference with contractual relations; Dolphin Delivery obtains injunction to restrain picketing. union argued the injunction violated its freedom of expression under

s.2(b) Charter – expressive activity of picketing 4 specific issues

is picketing “expression”?

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does the Charter apply to the common law? does the Charter apply to the common law in this situation? does the Charter apply to court orders?

picketing is expression, and should be protected by the Charter; however, the relationship between the union and Dolphin Delivery was purely a private relationship, not one in which Dolphin Delivery acted on authority of a statute

“the Charter will apply to the common law … however, only in so far as the common law is the basis of some governmental action which infringes a guaranteed right of freedom” (p.799)

court order is not gov. action “I cannot equate for the purpose of Charter application the order of a court with an element of governmental action” (p.799)

“where private party ‘A’ sues private party ‘B’ relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply” (p.800)

gov. does not mean whole of gov. but the executive and administrative branch

test: in order to find that the Charter applies to private disputes, you must be able to show the “exercise of or reliance upon governmental action,” or that one private party invokes or relies upon government action to produce an infringement of the Charter rights of another (p.800) this means delegated legislation, regulations, orders, and municipal

by-laws are all bound by Charter

McKinney v. University of Guelph, [1990] 3 SCR 229Mandatory retirement age for University teachers in Ontario. in order to be gov., the governing entity must be appointed by

the gov. legal autonomy is critical university is not government for the purposes of the Charter, and

as such the policy is upheld and the professors must retire at 65 mere fact that entity is creature of statute and has legal

attributes of person does not make its action subject to Charter while a university provides an important duty of a public nature, it cannot

just on this basis be found to be government; not enough to “perform a public service”

what is crucial is that because a university has an independent board of governors, makes them fully autonomous from government, makes them “masters in their own houses”

thus, when this independent board makes a policy, it cannot be seen as a government policy

in order to be government, the governing structure of an entity must be appointed by government in this case, because the majority of the Board of Governors at a

university is not appointed by government, a university cannot be seen as government, and thus under s.32 of the Charter cannot be brought under the ambit of the Charter’s scrutiny for equality rights violations

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Wilson J.’s dissent: “the function test” unwilling to agree that minimal state interference is a reason not to

apply Charter private power is what we should really be worried about – this is the

primary source of coercion and violence Canadian gov. has protective role to play – Wilson is unwilling to find

freedom means absence of gov. if body depends on gov. funding and created by statute, should mean

it is gov. gov. control test: entity is gov. when the legislative executive

braches exercise control over the entity in question gov. retains considerable control over university, and thus the

Charter should apply

Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130The Church of Scientology held a press conference on the courthouse steps, during which its counsel read from and commented upon allegations contained in the notice of motion by which the Church intended to commence criminal contempt proceedings against Hill, a Crown attorney; the allegations that Hill had misled a judge and breached orders sealing certain Church documents were found to be untrue and without foundation; Hill then commenced an action for damages in libel against the Church and its counsel. no Charter violation in this context – private parties owe each other no

constitutional duty in the context of civil litigation, the Charter will apply to the common

law only to the extent that it is found to be inconsistent with Charter values

this calls for a more subtle balancing of values and principles than the rigid Oakes test allows

Charter values, framed in general terms, should be weighed against the principles which underlie the common law

where a common law violates a Charter value, a balancing process must be undertaken to see if that law should be struck down or read down

the freedom at play in this case is the freedom to lie balanced against someone’s reputation – defamatory statements are not related to the core values of s.2(b)

the Church defamed reputation of Hill, and no evidence that gov. controlled the litigation no gov. involvement

arguably, not a huge amount has changed since Dolphin Delivery, but now we have a strong argument to make for Charter values in private action

What is a Government Entity?Eldridge v. British Columbia (A.G.), [1997] 3 SCR 624Hospital did not provide sign language for patients. Failure of gov. to provide for sign language interpretation and s.15 at issue. La Forest J. for a unanimous court says the Charter does apply

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SCC finds that contrary to previous jurisdiction, the Charter applies to a hospital

the Court here finds that the source of the infringement is the action of the hospital and the Medical Services Commission exercising discretion under the legislation at issue – what services are paid for and not paid for

unlike Stoffman, where it was held hospital not part of gov., here we are talking about implementation of gov. policy by a hospital

purpose of the Hospital Insurance Act is to provide particular services to public, and it is the gov. who is responsible for defining the content of service and who is to receive it thus, there is a specific connection between gov. policy and the

impugned hospital conduct the Charter can be infringed by the actions of a delegated

decision-maker in applying the legislation at issue “the purpose of s.15(1) of the Charter is not only to prevent discrimination

by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society” (para. 65)

Peter Hogg says Eldridge was wrongly decided – said that hospital had no powers of compulsion in providing service and thus not controlled by government.

Vriend v. Alberta, [1998] 1 SCR 493 certain provisions of the Charter obviously impose positive obligations on

governments to legislate or otherwise act, rather than simply constraining government from acting in manner that infringes rights

where, as in this case, a legislature’s inaction results in discrimination, the Charter can be held to apply

Remedies s.24(1) is the Charter’s remedy provision, and provides for the granting of

a remedy to enforce the rights or freedoms guaranteed by the Charter relationship between ss.52(1) and 24(1)

o s.24(1) is not needed in all situations for remedies, in particular if a holding of invalidity is all that the applicant needs

o s.24(1) is needed only where remedy provided by general law is not available for some reason

o s.52 applies to whole constitution, s.24 only to Chartero s.24(1) requires direct infringement while s.52 can sometimes be used

to grant remedy to those whose rights not yet been infringedo s.24 can be applied only by court of competent jurisdictiono s.52 can be applied by court or tribunal who is competent to decide

questions of lawo s.24 can be awarded in situations where it is the actions of public

officials that is at issue (and not a particular law)

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remedies available to the courto nullification – find that a statute is of no force or effect

questions is determined as if that unconstitutional law did not exist it is rare to find an entire statute is unconstitutional – more likely

that a particular provision is attackedo temporary suspension of declaration of invalidity

allows for an unconstitutional state of affairs to continue for a state of time in order for legislature to fix it

suspended also so people can get their affairs in ordero severance

where one provision is at issue occurs in most cases because unusual for the unconstitutional issue

to taint the whole statuteo reading down

where law has two interpretations – choosing narrow interpretation to preclude unconstitutional applications

essentially a technique of interpretation to avoid invalidityo reading in

assertion of text that parliament never enacted – judicial amendment

extends scope of legislative, often to remedy under-inclusiveness only in the clearest of context can you read in – must have very

specific language, or else will really overstep what the courts and legislature can do

sometimes can get a large amount of text read in where it is in other sources, but usually entails only inclusion of a few words

o constitutional exemptions where the law is constitutional but does not apply to persons whose

Charter rights are infringed by its effects not often used

o interim relief pending a constitutional challenge involves stays in injunctions

o damages really controversial and very rare language of s.24(1) says any remedy can be awarded that a judge

feels is just

Schachter v. Canada, [1992] 2 SCR 679Schachter was birth father of a baby, wanted to take leave, but s.30 of relevant Act provided leave for the mother, and s.15 for adoptive parents – he was neither, and so brought constitutional challenge; Schachter sought declaratory relief under s.24 to have benefits extended to all parents; court would have thus struck down s.32 with temporary suspension; but by the time this matter was heard by the SCC the government had in fact repealed the offending provision and replaced it with the entrenchment of a parental leave regime. at trial, provision found to violate s.15 Charter not saved by s.1, although

no s.1 analysis done – court read in “birth parents”

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when underinclusive legislation is found unconstitutional in violation of the Charter, what is the appropriate remedy and why? – twin guiding principles: respect for role of legislature – avoid undue intrusion, trying to be as

faithful as possible to legislative scheme respect for the purposes of the Charter

be careful with what fits the purpose of the Charter Nova Scotia (AG) v. Phillips – this is the classic case response

of court was to eliminate the benefit entirely to prevent discrimination you would think this is not consistent with Charter

choice of remedial options under s.52 define the extent of the inconsistency – how the law fails under s.1 is

critical to determining the appropriate remedy decide whether severance or reading in is appropriate

key factors remedial precision

when severing, you are defining inconsistency against the constitution

but reading in is much trickier to do, because it is usually legislature’s role

interference with legislative objective may have to consider budgetary considerations perhaps budget should not be part of s.1 analysis at all – cost

should not justify Charter infringement seriousness of delaying the operation of law must be taken

into consideration change in significance of remaining portion

doctrine of severance goal is to interfere with the laws adopted by legislature as little

as possible classic test: whether what remains is so inextricably bound up

with the part declared invalid that what remains cannot independently survive...whether it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all

Section OnePrescribed by Law an act that is not legally authorized can never be justified by s.1 the 2 values underlying the requirement that a limit must be “prescribed

by law” are: accessibility and intelligibilityo this distinguishes between a limit imposed by law and a limit that is

arbitrary

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o it is rare that the court will find that a law does not meet these standard

Little Sisters Book and Art Emporium v. Canada, [2000] 2 SCR 1120A bookstore whose books who were being held up at border because customs officials said these books violated definition of obscenity. Canada customs officials exercising discretion and refusing entry into Canada materials that were sexually explicit. Alleged that application of legislation was discriminatory, and gov. had positive obligation to ensure legislation was not being applied in a way that violated s.15. court found that source of s.15 violation was not the legislation itself, but

the administration of the legislation by poorly trained customs officials who were applying their own definition of obscenity

implementation of the legislative regime gave rise to inequality, and the application was not prescribed by law

however, because claimants had sought remedy pursuant to s.52, court could not grant declaratory remedy consequence was that books continued to still be held at border, so only option was for bookstore to bring another challenge

Reasonably and Demonstrably Justified – Oakes test Oakes: 1986 – onus was on accused to prove his purpose of possessing

marijuana was not for trafficking, violated presumption of innocence 4 key elements1) onus of proof: on the government to prove that the limit is

demonstrably justifieda) but there are some contexts in which the onus is not on gov. (ex. if a

party raises a Charter challenge, but gov. declines to participate)2) standard of proof: standard to which the government has to prove its

case is on BOP3) purpose of the measure: goal of the legislation must be pressing and

substantial, sufficiently important to justify limiting a Charter righta) it is extremely rare to find that a legislature’s chosen objective

is not sufficiently importantb) it is the objective of the infringing measure is what is important (RJR

McDonald)c) 3 situations where objectives will not pressing and substantial

i) where objective is incompatible with values entrenched in the Charter – ex. Lord’s Day Act

ii) where objective of law has shifted over time – ex. Polygamy Reference – what was articulated in 1892 not the same as today

iii) where objective is beyond jurisdiction of the enacting body (i.e. federalism argument)

4) proportionality (Oakes as modified by Dagenais): this final part of the Oakes test has 3 components

i) rational connection: the law must be rationally connected to the objective

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(1)“The government must show a causal connection between the infringement and the benefit sought on the basis of reason or logic. To put it another way, the government must show that the restriction on rights serves the intended purpose. This must be demonstrated on a balance of probabilities.” (RJR at para.153)

(2)proof is also an issue in this area – in many cases will need studies and data to prove or disprove the rational connection

ii) minimum impairment (or least drastic means): the law must impair the right no more than is necessary to accomplish the objective(1)“the government must show that the measures at issue impair

the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be ‘minimal,’ that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.” (RJR at para.160)

(2)there is a range of alternatives, and if another alternative is equally effective, but intrudes significantly less than the present choice, then the law will fail

(3)complete ban will also fail here(a)ex. Corbiere – found complete denial of the right of band

members in the first nations community not residing on reserve to vote in band elections failed at this stage of the analysis

iii) proportionate effect: the law must not have a disproportionately severe effect on the persons to whom it applies(1)there must be a proportionality between the deleterious effects

of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures (Dagenais at p. 889)

should the cost to government ever be used to justify infringing rights and freedoms in a s.1 analysis?

Newfoundland (Treasury Board) v. NAPE, [2004] 3 SCR 381 Binnie J. uses the severe financial poverty of Newfoundland to justify the

discrimination; up until this case it was always thought that cost would be a remedy issue, and not a s.1

analysis issue

Alberta v. Hutterian Brethren of Wilson Colony [2009] SCJ No 37Alberta’s Traffic Safety Act – all drivers of motor vehicles on highways must have valid photographic licence; since 1974, there was an exception for those who refused to get

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photographed for religious reasons; 2003 legislation amended to get rid of exception to combat identity fraud through use of photo-ID software database; Hutterian’s (very small group of people) belief that their religion bans getting photographed.Held: Hutterians have a choice – they can violate their faith and drive or not drive and use public transit, so no s.1 violation. issue is not whether this provision violates freedom of religion – it

absolutely does – the issue is about s.1 para.76 where no alternative means are reasonably capable of

satisfying the government’s objective, the real issue is whether the impact of the rights infringement is likely to be disproportionate signaling that the final stage of the Oakes test is the most important

this is a balancing test, and a new approach to s.1 use to be minimal impairment, but now we have balancing i.e. majority claims that it is really only at the final step that court

should take into consideration the impact on the group of the infringement, and prior to this, courts should only think about the purpose

but this seems to make the s.1 test more in favour of the government due to all the focus on the purpose of the legislation

S.2 Freedom of Religion Test (Hutterian Brethren)1) show claimant sincerely believes in a practice in a nexus with religion2) legislation interferes with claimant’s ability to practice that religion in a

way that is more than trivial

S.15 – Equality what is equality?

o “The promotion of equality 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.” (McIntyre J. dissenting in Andrews – seen as the definition today, and is most often used in a s.15 analysis)

o “Equality means that our society cannot tolerate legislative distinctions that treat certain people as second class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend human dignity.” (L’Heureux-Dubé, J., Egan)

o “The rights enshrined in s. 15(1) of the Charter are fundamental to Canada. ... In order to achieve equality the intrinsic worthiness and importance of every individual must be recognized regardless of the age, sex, colour, origins or other characteristics of the person. This in turn should lead to a sense of dignity and worthiness for every Canadian and the greatest possible pride and appreciation in being a part of a great nation.” (Cory J., Vriend)

o “Equality rights claims are ... unable to get at the causes of inequality and other social ills; they deal only with discrete symptoms, leaving underlying social structures untouched. ... the Charter has done little

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to alter power relations, redistribute wealth, or promote social welfare within the Canadian version of welfare capitalism.” (Joel Bakan, (quoting Peter Russell) Just Words) Charter critics – that using Charter as primary means is not going to

address the fundamental means that people are being discriminated against

types of equalityo administrative equality

equality before the law at its most basic and fundamental level, equality means that

existing laws be administered equally to everyoneo formal equality

equal protection of the law we must treat groups equally

o substantive equality equality under the law and equal benefit of the law this is not just about the form and the administration of the law, but

about the impact of the law equality violations exist where one group is impacted more

adversely than another by the operation of the law requires a focus on systemic and group-based inequalities it encompasses the right to have one’s differences acknowledged

and accommodated both by the law and by relevant social and institutional policies and practices

it examines the impact of law within its surrounding social context to make sure that laws and policies promote full participation in society by everyone, regardless of personal characteristics or group membership

“The purpose of s. 15(1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society.” (Eldridge 1997, at para.65)

Andrews v. Law Society of B.C., [1989] 1 SCR 143Citizenship not one of enumerated grounds in s.15, but Andrews argued that it was analogous – Andrews was British lawyer, but was barred from practicing in BC only by his lack of Canadian citizenship (he qualified in every other way).Held: discriminatory, and not justified under s.1. the test

Does the law create a distinction based on an enumerated or analogous ground? does it result in the denial of one or more of the 4 basic equality

guarantees articulated in s.15(1) such as equal benefit or equal protection of the law

Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

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discrimination is: “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.” (CLG at 1240, McIntyre J. in dissent)

non-citizens are a group that lack in political power, and thus citizenship is an analogous ground to s.15 must look at if the group is a “discrete and insular minority”

there is discrimination, and cannot be upheld under s.1 failed at both rational connection, and in the alternative, also the

minimum impairment stage it is true that lawyers should understand Canadian law and values, but

citizenship is not the means to achieve this objective

R. v. Turpin, [1989] 1 SCR 1296Sharon Turpin and Latif Siddiqui were tried for first degree murder in Ontario; they must be tried in front of a judge and jury according to CC; challenged the constitutionality of the provisions; argued that since there is an exception to CC for trials in Alberta, there was a violation of their right to equality under s.15.Held: the requirement for a murder trial to be conducted in front of a judge and jury did not violate s.15 because distinguishing upon residence is not discrimination, does not meet any indicia of discrimination. one of the things missing from Andrews is context

it is only by looking at largest context can we say that differential treatment results in inequality and fosters disadvantage

indicia of discrimination stereotype historical disadvantage prejudice

keep in mind that the fact that the particular “group” being argued here is a group of murders – and it can be assumed that this factor influenced the outcome of the judgment

The S.15 Trilogy – 3 approaches to s.151) human rights approach – follows McLachlin in Miron

a. that the purpose of s.15 is what should drive the analysisb. look at historical disadvantagec. look at the way the law effects people and how it effects their

dignity2) “groups not grounds” approach – L’Heureux-Dubé J.

a. how we decide where and how there is discrimination, need to think of context, and not on whether you can compare yourself to somebody else

3) internal relevance approacha. whether the distinction was based on characteristic relevant to

how the law has drawn its lines

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Thibaudeau v. Canada, [1995] 2 S.C.R. 627Constitutionality of tax provisions that made child-support payments deductible/taxable; Thibaudeau argued that by imposing tax burden on the money, which she was to use exclusively for her children, s.15 was infringed; given that most custodial parents in Canada were women, she brought her claim on sex discrimination.Held: no violation of s.15 because it was advantageous to the “post-divorce family unit”. you had certain amount of money in post-divorce family unit, and at the

end of the day it benefited the whole family (ironically, assumes post-divorce families work together)

Despite this case, government did get rid of the inclusion-deduction system.

Miron v. Trudel, [1995] 2 SCR 418Challenged alleging discrimination based on marital status.Held: there is discrimination and not justified under s.1. goal of the legislation = reducing economic dislocation and hardship in

the aftermath of injury to an adult partner in a family unit so to treat this family differently because they are not married reinforced

stereotype

Egan v. Canada, [1995] 2 SCR 513Same sex couple lived together for 40 years, but denied ability to get benefit under old age security because “spouses” in Act defined on heterosexual grounds.Held: violation of s.15 but justified under s.1. all 9 SCC judges said sexual orientation is an analogous ground in

s.15 5 said violated s.15, but majority at the end of the day said justified under

s.1 equating same sex couples and opposite-sex couples is a “novel concept”

and so court cannot move forward on s.1 analysis – Parliament has chosen this wording for a reason and court should be deferential (Sopinka J.)

“… marriage has from time immemorial been firmly grounded in our legal tradition … But its ultimate raison d'être transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship… marriage is by nature heterosexual.” (La Forest J.)

Note that this case can be distinguished from Miron because here, at issue is a gov. benefit, whereas in Miron it was private insurance – courts are much less willing to force gov. to spend money.

The Law Test, Law Factors and Consequences Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto:

University of Toronto Press, 1997)

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o Charter litigation is focused on protecting individuals from public (state) interference in their private affairs, but not on requiring positive assistance from the state

o Charter litigation is focused primarily on state action – not state inaction, and while there have been some limited successes in this regard since Professor Bakan wrote his book – primarily the Charter is triggered by the operation of a law, and not by the general conditions of social inequality that might require state redress

o equality litigation necessarily constructs the conflict as a clash between rights-holders and duty-bearers – what he calls dyadic or atomistic there are many systemic things that get left out, like poverty

o Bakan argues the Charter can be an effective tool, but it is just one tool among many – thus we have to be careful of when to use the Charter

scholarly critique of Law; Fay Faraday, Margaret Denike, and M. Kate Stephenson, Making Equality Rights Real: Securing Substantive Equality under the Charter (Toronto: Irwin Law, 2006)o Law used too formally – and 4 factors applied too rigidlyo use of comparator groups bar some claims – hard for people to fit their

experiences into a particular categoryo human dignity is at heat of Law, but it is not defined and it is a very

hard concept to graspo why is purpose is the s.15 analysis – is this not be better suited under

s.1?

Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497Nancy Law, a 30 year old seeking survivor benefits under CPP which are limited only to people over 35, disabled or with dependents at the time of the deceased’s death, otherwise, the survivor claimant is not entitled to benefits until she reaches the age of 65; challenged on the basis that the age requirement was in violation of her equality rights under s.15(1).Held: no violation, because idea behind CPP was to help older women after death of a spouse. “It may be said that the purpose of s. 15(1) is to prevent the violation of

essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political and social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of society, equally capable and equally deserving of concern, respect and consideration.” (para. 51) human dignity is at heart of s.15 according to Law

“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, when the dual perspectives of long-term security and the greater opportunity of youth are considered. ... The law functions not by the device of stereotype, but by distinctions corresponding to the actual situation of individuals it affects. By being young, the appellant, a fortiori, has greater prospect of long-term income replacement.” (para. 102)

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the Law test1) 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?

2) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and

3) 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? – 4 criteria to be applied flexibly (although it has been applied rigidly)

a. is the individual or group already disadvantaged in society?b. is the impugned law in fact taking into account the true

characteristics, needs or capacities of the individual or group involved? if so, discrimination will not likely result

c. does the law or policy improve conditions for a disadvantaged group?

d. how important is the interest to ensuring full participation in society?

Tomasson v. Attorney General of Canada, 2007 FCA 265Patti Tomasson is a lawyer and lives in Vancouver; she adopted two children; Ms. Tomasson applied to the Employment Insurance Commission (the “Commission”) for maternity and parental benefits and on both occasions, she was granted parental benefits but was denied maternity benefits; she was granted parental benefits but was denied maternity benefits because she did not give birth to her children. Federal Court said that the question to be asked within this leg of the test

is whether a reasonable person would conclude that the provisions, either in purpose or effect, demean the applicant’s human dignity

found that the purpose of the impugned provisions of the Act was to replace the income of insured pregnant women and biological mothers while they undergo the stress of giving and recovering from birth

this perspective indicates that the provisions were not implemented to encourage bonding or attachment, but to deal with the circumstances of employment

the FCA stated that the purpose of the Act’s provisions is to accommodate the physiological toll that childbirth takes on biological mothers; because they give birth, their time away from work is most likely more substantial than that of adoptive mothers

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Later Modifications and the Addition of the S.15(2) TestR v. Kapp, 2008 SCC 41Communal fishing licence granted to indigenous fishers, permitting commercial fishing for 24 hour period prior to commercial fishing season; Kapp were all commercial fishers and mostly non-indigenous, and they intentionally fished in the 24 hour period to challenge this aboriginal fishing strategy; argued exclusion to this 24 hour violated s.15 on race. majority characterizes the issue as an issue of affirmative action, and

devise a new test under s.15(2), seeming to ignore the manner in which the aboriginals themselves would construct their right to fish commercially

court uses the decision to distance itself from the existing test for s.15(1) and criticized the Law decision without actually working through the analysis

SCC tries to affirm that the Law never really aimed to set out new test, but only wanted to clarify Andrews yet, idea of human dignity is gone – no human dignity test

anymore in Kapp even with guidance of 4 actors in Law, human dignity too confusing to

apply it has become an extra burden on claimants, rather than giving us an

extra dimension to understand equality however, court does not overrule Law, so Law factors still important

need to focus on purpose purpose of s.15(1) is to prevent gov. from making distinctions on

enumerated or analogous grounds in perpetuating stereotypes purpose of s.15(2) is to enable gov. to combat existing

discrimination through affirmative measures the s.15(2) Kapp test

1) claimant must show a distinction has been made on an enumerated or analogous ground

2) government then has an opportunity to show that the impugned law, program or activity is ameliorative and, thus, constitutional

a. does the program have as its object an ameliorative or remedial purpose?

b. does the program target a disadvantaged group identified by the enumerated or analogous grounds?

3) if the government fails to demonstrate that its program falls under s.15(2), the program must then receive full scrutiny under s.15(1) to determine whether its impact is discriminatory

Withler v. Canada (Attorney General), 2011 SCC 12Challenge to federal legislation; benefits given to federal civil servants and to Canadian forces members; benefits during employment and after retirement; included survivor’s benefits for spouses and dependents of plan members; survivors’ benefits includes supplementary death benefits (SDB) – lump sum payment to plan member’s designated person at time of death – valued at twice plan member’s salutary at time of death or termination of employment; under both schemes, also reduction provisions – take effect when plan member attains certain age;

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reduces value of SDB by 10% each year after plan member turns 65, and the other legislation reduces SDB 10% each year after plan member turns 60; Withler challenged the reduction provisions as discrimination based on old age.Held: trial judge properly found that reduction provision did not fail to take into account the claimant’s actual circumstances because the claimants were able to meet funeral/death etc. expenses + no perpetuation of disadvantage. courts looked at the package of benefits as a whole, and not just the

specific reduction provisions lower courts say this is one part of an elaborate scheme

under first factor of Law, elderly Canadians not economic disadvantaged compared to all other age groups

on second factor, the law did not fail take into consideration their actual circumstances

on third, while there is ameliorative purpose, third branch not engaged impact of reduction provisions not particularly severe in fact, given the whole package, these folks were more advantaged

than the average elderly Canadian thus, dignity not affected

Court of Appeal said while not perfect fit for each individuals, the legislation was a broad based scheme, meant to cover the various needs that people have while they move through life dissenting said choice of comparator group was wrong in lower court;

and furthermore, the judge used different comparator groups at different stages – cannot use comparator groups inconsistently in one analysis

true objective of provisions was to save money – this is not pressing and substantial means to justify the discrimination

SCC this looks at insurance, but plays out differently at different times of

life para.36 – stereotyping is said to occur when disadvantage is based on

stereotype that does not correspond to actual characteristics of the claimant group (this language is the language of Law – one of the factors Law test)

para.37 – reaffirms contextual approach to s.15 they then map the 4 contextual factors – i.e. they take Law and

weave it in to understand what prejudice and stereotyping means

they agree that there are problems with the comparison groupThe problem with Withler is that it leaves out oppression, marginalization, powerlessness, stigma, devaluation etc. in the definition of discrimination. On the positive side, the SCC correctly identified the main problem with comparative groups – formal equality privileged over substantive equality. But ironically, absent comparison, the discrimination that the Withler people faced kind of disappeared. Finally, as with Law, no attention to gender, and no attention to class – no attention to the fact that legislation disproportionately affects elderly single women, a group more marginalized than any other in society.

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Hodge v. Canada (Minister of Human Resources Development) [2004] 3 SCR 357Women denied CPP at death of common law spouse, because at the time they were separated – Hodge trying to leave spouse for several years from abusive relationship; applied for survivor benefits, denied because she did not fit definition of spouse – had to be in opposite sex relationship at time of spouse’s death, living in common-law relationship for period of at least 1 year; claimed discrimination on grounds of marital status.Held: no discrimination. court rejects Hodge’s comparison group court chooses instead divorced as comparison group if you were divorced at time of death, will not get benefit – so no

discrimination because everybody denied benefit equally comparison group has to mirror claimant with exception of personal

characteristic that offends the Charter

Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 SCR 657Claimants were families whose children lived with autism, and were seeking a particular kind of treatment that studies showed were fairly effective if children got it at a certain age – the treatment was very expensive.Held: no discrimination due to choice of comparison group. claimants wanted to compare to families with adult mental diseases court said should compare to able-bodied people seeking funding for non-

core treatment Auton sets a precedent in asking: is the benefit in question

provided by law? this severely limits the positive right claims that may be used in s.15 (and note that the onus is on the claimants, unlike in s.1 where it is on gov.)

McLachlin said the legislation does not violate Charter because claimants are unable to prove that the benefits are provided for by the law the legislation makes distinction between core and non-core services McLachlin said this treatment is neither core nor non-core the legislation does not have its purpose of meeting all medical needs

The S.15 Tests as they stand in the wake of WithlerS.15(1)1) overarching considerations

a) substantive equality is the guiding principleb) pay due attention to the purpose of the equality guarantee; in

particular freedom from discriminationc) avoid formalistic approach to comparison – must instead focus on if the

law contravene notions of substantive equalityd) take account of the full context of the claimant group’s situation,

including the actual impact of the law on the group (is the law ameliorative in its effect; LF3)

e) subjective/objectiveness factors must both be looked at – most of all must take flexible approach to the analysis

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2) 2 step testa) does the law create a distinction based on a listed or analogous ground

– is the claimant singled out based on some kind of personal characteristic? (note that Auton requires that the benefit/distinction be created by the legislation)

b) does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (i.e. focus on substantive equality)i) prejudice: does the law treat a historically disadvantaged group in

a way that exacerbates the situation of the group (LF1, 4)?ii) stereotyping: does the disadvantage imposed by the law

correspond to the actual circumstances and characteristics of the claimant or claimant group (LF2)?

The particular contextual factors relevant to the substantive equality inquiry at the second step [of the Andrews test] will vary with the nature of the case. A rigid template risks consideration of irrelevant matters on the one hand, or overlooking relevant considerations on the other: Kapp. Factors such as those developed in Law — pre-existing disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected — may be helpful. However, they need not be expressly canvassed in every case in order to fully and properly determine whether a particular distinction is discriminatory. . . . [Emphasis added; Withler para. 66.]

S.15(2) – The Kapp test, as modified in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 371) overarching considerations2) does the law create a distinction based on a listed or analogous ground?3) is the law ameliorative in its purpose? (onus shift)

a) is it a genuinely ameliorative programb) is it directed at improving the situation of a group in need of

ameliorative assistance in order to advance substantive equalityc) is there a correlation between the program and the disadvantage

suffered by the target groupd) is a rational means used to pursue the ameliorative goal

4) if not, does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

S.7 – Life, Liberty, and Security “Despite all the rhetoric about Canada being a caring and compassionate

society, its social welfare system had done little to address economic maldistribution, even at the worst end of the scale. Universally provided services, such as health and education, do not redistribute income or wealth; nor does the income security system as a whole. … Health care provides a good example of the problem. All the proposals for a social right to health place on the state an obligation to ensure that all Canadians have access to health care. They say nothing, however, about

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the social determinants of ill health, particularly the unequal social relations that have much to do with why and to whom illness happens.” – Joel Bakan, Just Words, at 139

s.7 says: 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.

who is “everyone”o does not include corporation, as corporations do not have

attributes of natural persons – no right to life (Irwin Toy v. Quebec, [1989] 1 SCR 927)

o does not include foetus (Borowski v. Canada (Attorney General), [1989] 1 SCR 342)

o every person physically present in Canada is included in “Everyone” – meaning non-citizens present in Canada have s.7 protections (Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177)

the court has never found a s.7 violation that was later justified under s.1

used to think that s.7 only applied to criminal law – champion of this view was Lamer J. – this position shifted in 1999

substantive law: law which fixes duties, establishes rights and responsibilities among and for persons

procedural law: law which merely prescribes the manner in which such rights and responsibilities may be exercised and enforced in a court of lawo natural justice

there is a 2-part test– leading case on s.7 analysis is Rodriguez1) determination of whether one’s right to life, or right to liberty, or right

to security of the person has been violated by government legislation or action

2) determination of whether or not this violation is done in accordance with the principles of fundamental justice

a. the principles of fundamental justice are to be found in the basic tenets of the legal system (Reference re s. 94(2) of the Motor Vehicle Act (B.C.), p.1163)

i. look at where s.7 is – must look to ss.8-14 as they are illustrate of the fundamental principles of justice

ii. basic tenets of the legal system are within the operation of our system of justice – figuring out whether something is a principle of fundamental justice:

1. nature2. source3. rational4. essential role that the principle plays in our justice

systemb. thus fundamental justice is not limited to procedural

guarantees the broader questions around s.7

o how is the public/private divided engaged?o how do the economic aspects of these decisions effect the outcomes?

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ex. right to work, ability to earn an incomeo who should be making decisions around health care?

activism/deferential debate is very much at playo what is the relationship between s.15 and s.7?o what bearing should health care as a defining aspect of the Canadian

wealth care state have on these matters?o how does class fit in?

The s.7 Test1) has there been a violation of life, liberty or security of the person?2) if so, was this violation done in accordance with the principles of

fundamental justice?a) to be a basic tenet of the legal system, 3 criteria must be met (CLG,

p.1084)i) is there societal consensus that the principle is vital or

fundamental?ii) is the tenet at issue not too broad as to be a mere generalization

about what our society considers ethical or moral?iii) is the tenet at issue a legal principle?

b) if something is manifestly unfair, it will also not be a principle of fundamental justice

Then proceed to s.1.

The Scope of s.7Rodriquez v. British Columbia (Attorney-General), [1993] 3 SCR 519Sue Rodriguez was a 42 year-old mother who was diagnosed ALS in 1992; she began a crusade to strike down s.241(b) CC, which made assisted suicide illegal, to the extent that it would be illegal for a terminally ill person to commit “physician-assisted” suicide; applied to have s.241(b) struck down as it violated s.7. majority

security of the person is breached however, there is consensus around principles of fundamental justice

that support this breach purpose is to protect vulnerability of some people there is no consensus that the distinction between passive and active

forms of treatment is arbitrary or unfair dissent

too much of s.1 weaved into s.7 analysis by the majority this legislation offends principles of fundamental justice unjustified

under s.1 – see Morgentaler law denies person’s control of body in an arbitrary way

S.7 and Health Care“Those who seek private health insurance are those who can afford it and can qualify for it. They will be the more advantaged members of society.

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They are differentiated from the general population, not by their health problems, which are found in every group in society, but by their income status. We share the view of Dickson C.J. that the Canadian Charter should not become an instrument to be used by the wealthy to “roll back” the benefits of a legislative scheme that helps the poorer members of society.” – Binnie and LeBel JJ in Chaoulli at para. 274

R v. Morgentaler, [1988] 1 SCR 303 doctors set up an abortion clinic in Toronto for the purpose of performing abortions on women who had not received certification from the Therapeutic Abortion Committee, as required under s.287(4) CC; they were attempting to bring public attention to their cause, claiming that a woman should have complete control over the decision on whether to have an abortion. procedural aspects of the law violate security of the person, and cannot

be saved by s.1; substantive aspects of the law are not at issue security of the person means that the human body must be free of

interference from others, as well as protection from the overlong subjection to vexations and vicissitudes of a pending criminal accusation

s.7 step 1: violation of security of the person removing a decision-making power inflicts both physical harm and

emotional stress forcing a woman, by threat of criminal sanction, to carry a foetus to

term unless she meets certain criteria unrelated to the own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person

delays in the system also imposes an emotional stress on the woman s.7 step 2: violation not in accordance with principles of

fundamental justice procedures are flawed only 27% hospitals were accredited to perform abortions impractical for women to travel long distances to get abortions in

accredited hospitals s.1 analysis: the only question looked at is the balance struck between

priorities and aspirations of pregnant women, and gov. interest in protection of foetus fails all branches of the proportionality test not rationally connected not in proportion impairs more than necessary in fact, delays may increase danger to women’s health

Wilson J. (concurring in result but not in reasoning) says the main issue is can a woman be compelled to carry a fetus to

completion – not just about security, but also liberty in her view, abortion is not a criminal law issue, but human dignity

an aspect of human dignity is “the right to make fundamental personal decisions without interference from the state. This right is a critical component of the right to liberty” (CLG, p.1173)

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states that men cannot understand the substantive/subjective issues at stake here, and so they can only objectify it (p.1174) – keep in mind that Wilson J. at this time was the only female on the SCC

the provision violates s.7 by taking away woman’s reproductive choice and giving it to the state – it is not just a procedural violation the legislation “asserts that the woman’s capacity to reproduce is

not subject to her own control. It is to be subject to the control of the state…She is truly being treated as a means – a means to an end which she does not desire but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life.” (CLG, p.1175)

recently we see a widening of scope in s.7 – Adams v. Victoria (City)o adequate shelter falls within s.7 – right to life

no definitive judgment yet as to the extent of which liberty extends beyond freedom from physical restraint – the prison cases

some would argue that economic liberty is not included s.7 because s.7 does not mention “property”o this means, for ex. – s.7 has not yet held to protect right to work

of the s.7 protections, security of the person has been interpreted to give the most expansive protections

Chaoulli v. Quebec (Attorney General), [2005] 1 SCR 791At issue are provisions that prohibit contracting private health; arguments that they violate Charter and Quebec Charter. Deschamps J. makes the decision under Quebec Charter

problem is Quebec Charter does not have “in accordance with principles of fundamental justice” – makes what is interpreted under it broader than the Charter

so, could argue no precedential value outside Quebec in Deschamps’ view, the reason of this provision is to protect integrity of

the public health care system but it is not minimally impairing other provinces and countries protect their public health care system

with less absolute bans on private health care the judicial role according to Deschamps J.

courts have duty to rise above political debate judges can add value to social claims of justice by listen to claims of

injustice that are not heard by Parliament – this is her justification for activism

so court is under obligation to intervene where there has not been proper legislative attention to the social issues in conflict

the question here is not about getting rid of public health care, but about how we balance suffering of people outweighs protecting the public health care system at all cost

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furthermore, evidence does not show that public health care is at danger of perishing – looks to other countries

note that the dissent take the same evidence and say there is a rational connection between banning private insurance and keeping health care accessible to everybody

tenets of the legal system – looking to Rodriguez; Malmo-Levine; Morgentaler it is a principle that law cannot be arbitrary but there is a fundamental disagreement as to what arbitrary means

McLachlin (para.129-133) – a law is arbitrary when it bears no relation to, or is inconsistent with, the objectives that lie behind it in this context, if law is unnecessary or inconsistent with

objective, then law is not in accordance with principles of fundamental justice

Binnie and Lebel JJ. in dissent says this is the wrong issue to be decided by judges – this is a

legislative issue they also say that parliament’s decision is based on reasonable

assessment of evidence – it is necessary to prohibit private health care not in conflict with fundamental principles of justice

they say state’s interest is to provide high quality health care for all, in a manner consistent with equality, efficiency, and cost-considerations i.e. state wants to provide health care based on need rather than

wealth – this is a rational way to preserve the health care system

S.7 and the Litigation of Poverty early cases of economics and s.7 were brought by corporations

rejected, pointing to how s.7 does not provide protection for property however, non-inclusion of property did not wipe out possibility that s.7

would not protect basic necessities to life but Gosselin is a significant barrier to bringing these kinds of cases

Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429The point of the government provided program at issue was to get people off of welfare – so participating in training programs was prerequisite of getting benefits; youth defined as under 30; for everyone else,$466 dollars a month – half of what Statistics Canada set as poverty line; but youths get $170/month unless youths participated in training program, after which they would get the $466; Gosselin endeavoured to participate in programs, but never completed them; argued this program violated her s.15 right to equality on basis of age and social condition – lost her argument 5:4 at SCC; then argued s.7 right to security of the person, that gov. has positive obligation to provide for basic necessities of life.Held: no violation of s.7 (7:2). much of the case deals with the public/private divide McLachlin CJC – for the majority

this case does not get over justiciability issue the factual record is insufficient to show a deprivation by the

state, and without it we cannot enter into a s.7 analysis this is gov. action (so s.32 Charter hurdle is overcome), but the gov.

action in question is beyond the scope of s.7

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the dominant strand of jurisprudence on s.7 informs this section is about enforcing compliance to the law – i.e. it is about state action (para.77) McLachlin refuses to extend the administration of justice to this

context even if one could bring this within administration of justice, there is an

additional barrier – this is a novel claim because it is about positive obligations of the state (para.82) this is the exact language used in Egan – that society is not

ready for it yet perhaps this is optimistic (as after Egan, Vriend said, the time has

now come) Arbour J – for the minority: there are positive rights in s.7 (she would

have found for Gosselin) overcoming 4 firewalls of s.7 – evoked to limit scope of s.7,

particularly in context of social welfare claims1) The Economic Nature of the Claim

a. the firewall argument: that s.7 does not apply because it does not deal with economic rights

b. lower courts have clearly been uncomfortable with any interpretation of s.7 that might order gov. to spend money

c. Arbour says courts have repeated left open the door for these claims

d. she says what is at issue is the right to subsistence – not about handing over blank cheque, but about minimum amount of support required

e. many other rights claims in s.7 have economic components – rarely is it “costless”

f. the right to a minimum level of social assistance is not the same thing as a commercial right to property

2) Legal Rights Sub-Headinga. the firewall argument: s.7 is right in front of the legal rights

sections of the Charterb. Arbour refuses to give a “sub-heading” in the Charter – s.7

constitution is a living tree, and we need to adapt as needed3) Negative vs. Positive Rights

a. the firewall argument: s.7 is only a bar against state actionb. Arbour points to all of the places in the Charter where you can

see positive rights – ex. right to vote, positive language rights (s.15), some freedom of association cases

c. Arbour argues that once the state has embarked on a project of social assistance, there is a positive obligation on the state to do that inclusively

i. there have been restrictions in equality in s.15 – ex. social condition never been found to be analogous ground in s.15 thus, we cannot depend upon s.15 solely

4) Justiciability

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a. the firewall argument: justiciability = things that are proper to be examined in a court of justice, so s.7 extends only to kind of questions that deal with administration of justice

b. Arbour says deciding level of benefits is not a justiciable question

c. finding that there is an entitlement to a level of basic welfare is and should be a justiciable question – this is where the majority and dissent most fundamentally disagree

one right or two rights? Arbour J says there are 2 rights

one is a qualified right – that is aimed at the justice system and is a justiciability issue

but s.7 also protects a free standing right that can be justified under s.1 – and must come to this conclusion on grammatical reading of s.1 this interpretation is also consistent with reading of Charter as

a whole positive rights are not at odds with purpose of the Charter

(para.330) test for finding positive rights claim/underinclusive

legislation by Arbour (para.365)1) claim must be grounded in a fundamental Charter right or

freedom rather than in access to a particular statutory regime2) proper evidentiary foundation must be provided, before

creating a positive obligation under the Charter, by demonstrating that exclusion from the regime constitutes a substantial interference with the exercise and fulfillment of a protected right

3) it must be determined whether the state can truly be held accountable for any inability to exercise the right or freedom in question

in this case, the gov. triggered a state obligation to ensure that the benefits program did not run afoul of Charter obligations

she does not consider principles of fundamental justice – why not? because she is considering it under the free standing right

Note that in Chaoulli we do not get stuck at the justiciability hurdle. Chaoulli was about choice, and we can make a similar argument here (that Gosselin merely made bad economic choices) – thus Chaoulli is a good case to use to get over the justiciability hurdle.1

Canada (A.G.) v. PHS Community Services Society, 2011 SCC 44 – “Insite”Insite is a safe injection facility in Vancouver’s downtown eastside that provides medical supervision to intravenous drug users. It has operated since 2003 under an exemption from the prohibition on possession of illicit drugs in the CDSA. In 2008 the federal Minister of Health failed to extend Insite’s CDSA exemption, which brought about this action. The

1 See class notes for excerpts of Arbour’s dissent that is not in the CLG textbook.

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claimants, the operator and clients of Insite, submitted that sections of the CDSA were of no effect because they violated the claimants’ s.7 Charter rights.Held: the provisions did not violate s.7, but the Director’s failure to grant the exemption did because it was an arbitrary application of the law. s.7 not violated because of the existence of the exemption but Minister’s decision not to renew violates s.7, and not in accordance

with principles of fundamental justice because it is arbitrary and disproportionate

court looks back at Chaoulli – under either definition of arbitrariness is violated

what is significant about this case is what SCC says about the factual matrix laid at trial through facts, SCC is able to talk about the impact of addiction, and

what happens in the facilities ex. there had never been death from overdose, history of the

Downtown East Side of Vancouver

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