mod 3 - the charter

Question 1

ordinary legislation

Answer 1

rights that are not protected by the charter, but instead by ordinary legislation. this includes: the right to an education, the right to health care, the right to a minimum wage, the right to a pension, and freedom from discrimination by private people

Question 2

section 1

Answer 2

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

Question 3

section 52 (1)

Answer 3

supremacy clause, states that any law that is inconsistent with the Constitution is of no force or effect

Question 4

section 32 (1) the charter applies:

Answer 4

a) 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
b) to the legislature and government of each province in respect to all matters within the authority of the legislature of each province

Question 5

what does the charter protect (section 2-15)

Answer 5

s. 2 - fundamental freedoms
s. 3-5 - democratic rights (right to vote)
s. 6 - mobility rights
s. 7-14 - legal rights
s. 15 - equality
(also official languages of Canada and minority language educational rights)

Question 6

section 33 (1)

Answer 6

the “notwithstanding clause”, which allows Parliament or a provincial legislature to temporarily override certain sections of the charter (applies only to section 2 and sections 7-15)
rarely done (mainly in Quebec)

Question 7

who does the charter protect?

Answer 7

everyone; every citizen; every individual

Question 8

problems/criticisms of the charter

Answer 8

vagueness - not necessarily a bad thing, not the same a ambiguity (i.e. freedom of expression - must be interpreted) (legal standards are vague, rules are specific)
originalism - inherent integrity meaning, what was meant by the drafters (impossible to know their intentions) (construction is required in addition to interpretation, giving effect to terms once their meaning has been determined)

Question 9

living constitutionalism

Answer 9

living tree metaphor - charter is subject to growth as society evolves within natural limits

Question 10

purposive interpretation

Answer 10

determine the purpose of the right

Question 11

reasonable limits - Oakes test (R v. Oakes)

Answer 11

1. define right and determine if infringed
2. if infringed, determine if infringement is justified (Oakes test)
   4 parts: if one part fails then unconstitutional = not justified, if passes test then justified = constitutional

Question 12

4 part Oakes test

Answer 12

1. pressing and substantial objective; proportionality test (the infringement must be substantial)
2. rational connection (between objective and infringement)
3. minimally impairing (is this the only way? least drastic, usually fail here)
4. proportionate effect(problem of incommensurability - aims to determine what is a reasonable limit)

Question 13

section 33 (3)

Answer 13

33(3): a declaration made under subsection(1) shall cease to have effect 5 years after it comes into force or on an earlier date

Question 14

how does a charter case arise?

Answer 14

• may be litigated in the context of ordinary law (i.e the argument that the law violates is unconstitutional, or how it is being enforced is unconstitutional)
• a person need not be charged with violating the law to argue that it is unconstitutional

Question 15

nickel back example - how charter cases arise

Answer 15

• ordinary law enforcement = challenge charges for listening to nickel back in park
• can challenge law = as president of fan club, (haven’t violated law)

Question 16

parties in a charter case

Answer 16

• “party” is a legal term describing the participants in the case, they include:
• the person making the claim or seeking relief (the plaintiff/applicant)
• the person whom the claim is made against (the defendant/respondent)
  the parities in a charter case are: the person(s) seeking relief from a charter violation and the state alleged to be in violation of the charter (if the constitutionality of a law is challenged, the Attorney General from the reverent province that passed the law, or federal government, is the defending party)

Question 17

Interveners to a charter case

Answer 17

• participates in case to advance arguments at courts discretion
• reflect the fact that there is usually more at stake in a charter case than simply a dispute between one party and the state
• some interveners from the case of Whatcott (hate speech) include:
  AG of Saskatchewan
  AG of Alberta
  Alberta Human rights commission

Question 18

standing

Answer 18

• in order to challenge the law, individuals have historically been required to have standing, meaning that they had to demonstrate that they were affected by the law in some direct way
• this has since been relaxed, the court will allow a plaintiff to bring a charter challenge to a law if:
  1. there is a serious question of constitutionality at stake;
  2. the plaintiff is either directly affected or has a genuine interest in the law; and
  3. there is no other reasonable/effective means of bringing the issue before the court

Question 19

section 24 remedies

Answer 19

24. (1) anyone whose rights and freedoms, as guaranteed by this charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances
    (2) where, in proceedings under subsection (1), a court concludes that evidence was obtained in a matter that infringed or denied any rights or freedoms guaranteed by this charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into dispute. (Important for criminal cases)

Question 20

the remedy of invalidation

Answer 20

• also known as “striking down”
• the court may sever a provision or provisions from an act, or strike down the act and it’s entirety; when this occurs the legislation is no longer enforceable
• this remedy flows directly from section 52 (1) - supremacy clause
• can also suspend declaration
• or interpret legislation in different ways: read down (over broad), read in/expand (under inclusive)

Question 21

remedies

Answer 21

court can give “appropriate and just” remedies such as

• damages $$
• injunctions: judicial order to stop doing something

Question 22

Schachter v. Canada

Answer 22

• father applied for benefits under the unemployment insurance act to stay home with baby while wife worked
• denied benefits because act only provides benefits to new mothers and adoptive parents (regardless of sex)
• schachter argued the law infringed the charter equality right, and government agreed
• important case bc Supreme Court sets out approach to interpretive remedies and legislative solutions, therefore must turn to section 52 (1)

Question 23

Schachter v. Canada (s. 52 (1))
- in this case, right was a positive right (benefit) because benefit was under-inclusive, there declaration unnecessary as provision was amended

Answer 23

3 questions when s. 52 involved:

1. what is the extent of the consistency?
   - determined by where legislation fails the Oakes test (fails at first step: must interpret inconsistency in a broad way, fails at step 2: must interpret more narrowly, step 3 and 4: flexibility (steps 2, 3 & 4 are the proportionality test)
2. can inconsistency be dealt with alone?
   - appropriate only in clear cases: 1. legislative objective is obvious, and it will further objective or constitute a less interference, 2. choice of means is not unequivocal, so not an unacceptable intrusion on legislative domain, 3. does not involve significant intrusion into budgetary decisions
3. should declaration be temporarily invalid? (gives government opportunity to correct) appropriate if: 1. striking down my pose danger to the public, 2. striking down would threaten the rule of law, 3. suffered from under-inclusiveness, and striking down would deprive deserving persons of benefits

Question 24

Irwin Toy Ltd. v. Quebec (Attorney General)

• freedom of expression
• add more detail to case later

Answer 24

• case concerned a challenge to the Consumer Protection Act in Quebec
• legislation prohibited television advertising aimed at children less than 13
• Irwin Toy sought a declaration that the legislation was invalid for a few reasons: breech of freedom of expression in section 2(b) of the charter
  *”expression” - conveys or attempts to convey a meaning
  necessary for: truth seeking as inherent good, participation in social and political decision-making, cultivating diversity and human flourishing

Question 25

freedom of expression section 2 (b)

Answer 25

the is a range called the spectrum of speech 
hate speech (Whatcott), commercial (Irwin toy), political (most accepted)

Question 26

Saskatchewan v. Whatcott

Answer 26

• distributed anti-homosexuality flyers in community contrary to section 14 of Human Rights Code
  section 14: no person shall published or display, or cars or permit to be published or displayed, on any lands our premises or the newspaper, the television or radio broadcasting station or any other broadcasting advice, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, statement or other representation:
  a) Tending more likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons, on the basis of a prohibited ground, of any right to which that person or class of persons is intitled under the law; or
  b) that exposes or tends to expose to hatred, ridiculed, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground
• Whatcott challenged law
• hate speech marginalizes individuals based on membership in a group, it does not advance underlying values of freedom of expression

Question 27

section 15 equality (most difficult for Supreme Court)

Answer 27

• equality before and under the law and equal protection and benefit of law (not about sameness)
  15. (1) every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national ethnic origin, color, religion, sex, age or mental or physical disability
• affirmative actions programs
  (2) subsection (1) does not preclude any law, program activity that has its object the amelioration of conditions of disadvantage individuals or groups including those that are disadvantage because of race, national or ethnic origin, color, religion, sex, age or mental or physical disability

Question 28

purpose of section 15(1)

Answer 28

• preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping

Question 29

purpose of section 15(2)

Answer 29

• enabling governments to pro-actively combat discrimination (it supports section 15(1))

Question 30

R. v. Kapp section 15

Answer 30

• British Columbia law establish a period in which only Aboriginals could fish for salmon in the Fraser river. A group of non-aboriginal fisherman fished during this period as a protest and were charged with violating the law. They are cute that the law was unconstitutional on the basis that it discriminated against them in violation of section 15.
• here the appellant’s claim discrimination on the basis of section 15(1)
• if the government establishes that the program falls under section 15 (2), the appellants’ claim must fail
• if the government fails to demonstrate that its program falls under section 15(2), the program must then receive full scrutiny under section 15(1) to determine whether its impact is discriminatory
• the government must prove: 1) the program has an ameliorative or remedial purpose; and 2) the program targets a disadvantaged group identified by the enumerated or analogous grounds

Question 31

Withler v. Canada

Answer 31

• Federal legislation provides benefits to civil servants and members of the Armed Forces and their families and includes a lump sum death benefit. This benefit is age related and is reduced pursuant to a formula that applied once the plan member exceeded the prescribed age. The claimants brought class action litigation arguing that the reduction in benefit was discrimination. They lost a trial and in the BC court of appeal, and appealed to the Supreme Court of Canada
• Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual group, which has the effect of imposing burdens, obligations, or disadvantages on such individual group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group really escape the charge of discrimination, while those based on individuals merits and capacities will really be so classed.

Question 32

two part test Withler case for assessing section 15(1)

Answer 32

1. does law create a distinction based on an enumerated or analogous ground?
2. does distinction create a disadvantage by perpetuating prejudice or stereotyping?

Question 33

analogous grounds

Answer 33

an analogous ground is one based on “a personal characteristic that is immutable or changeable only at unacceptable cost of personal identity”
- this can include sexual orientation, marital status and citizenship

Question 34

You work for a hospital. Your employer fires you because you’ve said something that offends her. The charter will apply to your exercise of freedom of expression.

Answer 34

False
- The charter applies primarily to government bodies, although it may apply to actors controlled by the government, or to private actors in so far as they perform public functions. The hospital is not considered a government body, despite the fact that it’s funding does come from the government.

Question 35

Does the charter protect against actions of private individuals?

Answer 35

• no the charter does not protect against actions of private individuals such as landlords, only state action

Question 35

s. 2 fundamental freedoms

Answer 35

• freedom of conscience and religion
• freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
• freedom of peaceful assembly and
• freedom of association