Power Point 2 - Constitution, Courts, Judicial Review

Question 1

Constitution, Courts, Judicial review

Answer 1

reference cases

application, interpretation, review

Question 2

Introduction

Answer 2

• The language of rights is potentially divisive
• because “rights talk” encourages us to invoke moral absolutes
• rights are grounded in ethical or moral worldview
• moral absolutes are non-negotiable! no compromise!

Question 3

Introduction, con’t

Answer 3

in reality, no right or freedom is absolute

for two reasons:

1. rights and freedoms come into conflict with each other
2. it is not practical to guarantee any right or freedom absolutely

Question 4

When rights conflict

Answer 4

compromises must be devised
-freedom of speech vs protection people from racist, sexist comments

• the right to privacy vs monitoring by govts in the name of national security
• the right to privacy vs govt scrutiny of how welfare recipients spend their benefits to reduce fraud

Question 5

The charter has changed how Canadians do politics:

Answer 5

The courts have gained more power to decide policy issues at the expense of elected legislatures

Question 6

Rights and their protection

Answer 6

Opponents of the charter warned that the charter would Americanize Canadian politics because judges - who, online legislature were not accountable to voters

supports saw judges as the appropriate decision makers because they did not cater to fickle public opinion and did not have a vested interest in pleasing voters

Question 7

S.1 Limitation clause

Answer 7

Queen v. Oakes
for a limitation on a right to be accepted as proportionate, it must meet be rationally connected to the government’s objective, it should impair the right as little as necessary to achieve the government’s objective, and the harm done to rights by a limitation must not exceed the good that it accomplishes

Question 8

S.2 Fundamental freedoms

Answer 8

Prohibition of language
Big M Drug Mart
Lavigne

Question 9

S. 3-5 Democratic rights

Answer 9

• Judges, Prisoners and people with mental disabilities can vote
• Ridings must be similarly sized
• Govt can restrict the amount of ‘third’ party spending during election
• Govt can’t prohibit publication of polls

Question 10

Provincial Electoral Boundaries

Answer 10

• “the purpose of the right to vote enshrined in section 3 of the Charter is not equality of voting power per se, but the right to ‘effective representation
• “relative parity of voting power”

However
“ensure that our legislative assemblies effectively represent the diversity of our social mosaic.“
In practise now + / - 25% with some special exemptions

Question 11

Elections Canada

Answer 11

To date, the principal beneficiaries of Charter challenges to electoral law, as far as the right to vote is concerned, have been judges, prisoners and people with mental disabilities.

Chief Electoral Officer applied the Sauvé (2002) decision during the 2004 and 2006 general elections, giving all inmates the opportunity to vote1988,

Disqualification based on restraint due to mental disability not justified

No specification of level of mental competence

Parliament removed disqualification on the basis of mental disability as part of Bill C-114.

Question 12

Harper case

Answer 12

upheld the federal law controlling interest group spending during election campaigns on equality grounds

Restrictions were reasonable to ensure a level playing field and prevent the wealthy from unduly influencing election outcomes

Equality trumps individual freedom of expression
Limits on third party spending violate freedom of expression, but can be justified

“to permit an informed choice to be made by ensuring that some positions are not buried by others [and] to preserve the confidence of the electorate in a democratic process that it knows will not be dominated by the power of money.”

Question 13

S.6 Mobility Rights

Answer 13

Canadians have the right to freedom of movement

However, there are two qualifications to this right:
1. The provinces can impose reasonable residency requirements as a condition of receiving social services

2. The provinces can introduce affirmative action programs favouring local residents as long as the provincial employment rate is below the national employment rate

Question 14

S.7

Answer 14

Legal rights

Question 15

Charkaoui v. Canada (citizenship and immigration)

Answer 15

The Immigration and Refugee Protection Act (IRPA)

Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness issue a certificate declaring that a foreign national or permanent resident is inadmissible to Canada on grounds of security

Impact: detention of the person named in the certificate.

Detention without warrant or hearing possible for foreign nationals for 120 days

Review by federal court within 48 hours for permanent residents

All information not available to person
-Absence of disclosure and full participation by accused

Supreme Court determines this to be a violation of fundamental justice, right to fair hearing, guarantee against arbitrary detention

Procedure for determining whether certificate reasonable violate section 7. Not saved by Section 1

Question 16

Application of the Oakes test

Answer 16

The infringement of s.7 is not saved by s.1 of the Charter. While the protection of Canada’s national security and related intelligence sources constitutes a pressing and substantial objective, and the non‑disclosure of evidence at certificate hearings is rationally connected to this objective, the IRPA does not minimally impair the rights of persons named in certificates. Less intrusive alternatives developed in Canada and abroad, notably the use of special counsel to act on behalf of the named persons, illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA.

Question 17

Legal rights clarified

Answer 17

• No reverse Onus
• Evidence must be properly obtained
• Requirements for search warrants broadened
• search and seizure restricted
• reasonable time for trials

Question 18

S.15 Equality Rights

Answer 18

Brooks v Safeway
Vriend Case
M v H

Question 19

May 1999

Answer 19

The Supreme Court of Canada rules same-sex couples should have the same benefits and obligations as opposite-sex common-law couples and equal access to benefits from social programs to which they contribute.

Question 20

M v. H

Answer 20

involved two Toronto women who had lived together for more than a decade.

When the couple broke up in 1992, “M” sued “H” for spousal support under Ontario’s Family Law Act. The problem was that the act defined “spouse” as either a married couple or “a man and woman” who are unmarried and have lived together for no less than three years.

The judge rules that the definition violates the Charter of Rights and Freedoms and declares that the words “a man and woman” should be replaced with “two persons.

“H” appeals the decision. The Court of Appeal upholds the decision but gives Ontario one year to amend its Family Law Act. Although neither “M” nor “H” chooses to take the case any further, Ontario’s attorney general is granted leave to appeal the decision of the Court of Appeal, which brought the case to the Supreme Court of Canada. The Supreme Court rules that the Ontario Family Law Act’s definition of “spouse” as a person of the opposite sex is unconstitutional as was any provincial law that denies equal benefits to same-sex couples. Ontario is given six months to amend the act.

Question 21

2004

Answer 21

The Supreme Court of Canada rules that the federal government can change the definition of marriage to include same-sex couples, but does not answer whether such a change is required by the Charter. It also reaffirms that religious leaders cannot be compelled to perform same-sex marriages.

Question 22

Equality rights: 1992

Answer 22

In Haig and Birch v. Canada, the Ontario Court of Appeal rules that the failure to include sexual orientation in the Canadian Human Rights Act is discriminatory.

Federal Justice Minister Kim Campbell responds to the decision by announcing the government would take the necessary steps to include sexual orientation in the Canadian Human Rights Act.

Question 23

Equality rights: 1995

Answer 23

The Supreme Court rules on the case involving Jim Egan and Jack Nesbit, two gay men who sued Ottawa for the right to claim a spousal pension under the Old Age Security Act.

The court rules against Egan and Nesbit. However, all nine judges agree that sexual orientation is a protected ground and that protection extends to partnerships of lesbians and gay men.

Question 24

s. 16-22

Answer 24

Official language and minority Education Rights

Review not related to Charter per se
1870 Manitoba Act
1867 Constitution Act
Protestant School Board Case

Question 25

SCC 40 and 41: duty of regulatory bodies to consult

Answer 25

• Consultation can be delegated by govt to regulatory boards
• Govt must indicate that it will rely on regulatory body to consult
• Consultation must be adequate and deep
• Factors Indicating Adequate Consultation
• provide an oral hearing
• provide early notice of the hearing process
• Formally seek the participation of affected Indigenous groups
• provide participant funding to prepare and tender evidence
• enable formal information requests to which written responses were received
• accept closing oral submissions from affected Indigenous groups
• provide reasons for its decision that expressly weighed impacts on Aboriginal and treaty rights
• provide written and binding conditions of accommodation

Question 26

Indigenous issues

Answer 26

S. 35

Question 27

No duty to consult in Development of Legislation

Mikisew Cree First Nation v Canada 2018

Answer 27

• Courts cannot intrude on rights of Parliament under separation of powers
• Cannot intrude on bills under development or consideration
• “could effectively grind the day-to-day internal operation of govt to a halt”
• Govt has duty to act honourably
• Indigenous groups have remedy thru legal process after legislation has been approved

Question 28

Trans Mountain Pipeline Decision by Federal Court of Canada

Answer 28

Court determines:
“Canada fell short of its obligations”

“Canada acknowledged it owed a duty of deep consultation to each Indigenous applicant. More was required of Canada.“

Meaningful dialogue missing from the final stage of consultation

Court finds Crown reluctant to deviate from what NEB had decided

Crown wrongly felt that it could not impose additional conditions

Question 29

Health and private insurance

Answer 29

Chauolli v Quebec
3-3 split on Charter
4-3 on Quebec Charter

Question 30

Constitutional Process

Answer 30

Patriation Reference
Quebec Veto
Secession

Question 31

Legality of Quebec separation

Answer 31

Constitutionally, secession of a province cannot be unilateral

International law does not provide right to unilateral secession

“the continued existence and operation of the Cdn constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they do not wish to remain in Canada
-Such a vote would confer legitimacy on a secession initiative

Question 32

Clarity act

Answer 32

House of Commons determines within 30 days whether question is clear

If vote on clear question affirms separation

Question 33

Charter litigation

Answer 33

First 195 Cases (through 92)

Legislation 79 upheld, 41 nullified

Provincial Statutes nullified 18/43 42%

Federal Statutes nullified 23/75 31%

Conduct of officials (police) 33% of 195

Successful charter challenges:

• Fundamental freedoms 29% (35)
• Mobility rights 33% (3)
• Legal Rights 49% (96)
• Equality Rights 19% (16)
• Language and Education 46% (13)

Reasonable Limits successful 39% (54)

Motions to exclude evidence success 59%

Question 34

More recent charter litigation

Answer 34

Court rejects Charter challenges of govt actions

Court nullified fewer provincial statutes

Court more deferential or govts more self-censorship?

Question 35

In the charters first decade

Answer 35

the courts decided about 1000 charter cases annually
-SCC made 20-30 decisions a year

since then the pace has slowed down between 2009 and 2012

• The SCC decided 69 Charter cases
• These constituted about 20 per cent of all cases decided by the Supreme Court

Question 36

Charter impact

Answer 36

Civil liberties over crime control

Quebec nationalism strengthened

Change way citizens:

• Look at constitution
• Pursue political goals

Question 37

Charter impact continued

Answer 37

Courts important instrument in social policy

Legalization of politics

• reduce role of elected politicians
• “judicialized politics and politicized the judiciary”
• Politicians avoid significant issues?
• By pass traditional politics ?