Professional Documents
Culture Documents
Bruce P. Elman
Table of Contents
15.0 Human Rights at Common Law and Under the Constitution 1867...............................................5
15.1 Introduction.....................................................................................................................................5
15.2 Human Rights at Common Law....................................................................................................5
Re Drummond Wren (1945)..............................................................................................................6
Re Noble and Wolf (1951).................................................................................................................6
Public Sphere.....................................................................................................................................7
Judicial Activism in the 50s..................................................................................................................7
Reference Re: Alberta Statutes (1938)..............................................................................................7
Saumur v. Quebec City (1953)..........................................................................................................8
Switzman v. Elbling (1957)...............................................................................................................8
Unwritten Constitutional Principles......................................................................................................8
Lalonde v. Ontario.............................................................................................................................8
The Canadian Bill of Rights..................................................................................................................8
5 failures of the BOR.............................................................................................................................8
The Canadian Bill of Rights..................................................................................................................9
Human Rights Regimes.........................................................................................................................9
The Canadian Charter of Rights and Freedoms: Roadmap...................................................................9
Conclusion...........................................................................................................................................10
16.0 The Charter: Origins and Interpretations......................................................................................10
16.1 Origins of the Charter...................................................................................................................10
Charter Model......................................................................................................................................11
Rights...................................................................................................................................................11
Enforcement........................................................................................................................................12
Override/Notwithstanding clause........................................................................................................12
16.2 Interpretative Techniques.............................................................................................................12
The Living Tree Principle....................................................................................................................12
The Purposive Approach.....................................................................................................................12
Purpose and Effect...............................................................................................................................13
The Contextual Approach....................................................................................................................13
Edmonton Journal v. Alberta (1989)...............................................................................................13
Thompson Newspapers (1998)........................................................................................................13
16.3 Aids to Interpretation....................................................................................................................14
Internal Aids........................................................................................................................................14
External Aids.......................................................................................................................................14
Comparative Rights.............................................................................................................................14
Charter Litigation................................................................................................................................15
Hypo steps to see if charter applies.................................................................................................15
Role of the courts in the interpretation of the charter..........................................................................15
28.1 Override s.33 of the Charter.............................................................................................................16
Ford v. Canada.................................................................................................................................16
Vriend v. Alberta 1998.....................................................................................................................17
17.0 Application of the Charter................................................................................................................17
2
17.1 Introduction...................................................................................................................................17
17.2 Charter and the public private divide.........................................................................................18
Government only (internal).................................................................................................................18
Government only (External)................................................................................................................18
Private action as well...........................................................................................................................19
Dolphin Delivery Ltd. V. RWDSU Local 580 (1986).....................................................................19
Blainey.............................................................................................................................................20
Hill v. Church of Scientology of Toronto........................................................................................20
17.3 Parliament or Legislature: Action and Inaction.........................................................................21
Legislative Inaction.............................................................................................................................21
Dunmore v. Ontario 2001................................................................................................................21
17.4 Government: Actors and Acts......................................................................................................21
Governmental Actors...........................................................................................................................21
McKinney v. University of Guelph (1990)......................................................................................21
Aftermath of McKinney......................................................................................................................23
Government Acts.................................................................................................................................23
Canada Justice v. Khadr 2008 SCC.................................................................................................23
18.0 Justification Section 1.....................................................................................................................24
18.1 Introduction...................................................................................................................................24
18.2 Prescribed by Law.........................................................................................................................24
R v. Therens 1985............................................................................................................................25
R v. Thomsen 1988..........................................................................................................................25
Miracle et al. v. Ontario 2005..........................................................................................................25
Alberta v. Hutterian Brethren of Wilson Colony.............................................................................26
GVTA v. CFS...................................................................................................................................26
Vagueness........................................................................................................................................26
18.3 The Section 1 Framework: The Oakes Test................................................................................27
R v. Oakes 1986...............................................................................................................................27
Dagenais v. CBC.............................................................................................................................28
Edwards Book and Art Shop...........................................................................................................28
Irwin Toy v. Quebec........................................................................................................................28
R v. Chaulk......................................................................................................................................28
Thompson Newspapers v. Canada...................................................................................................28
Vagueness............................................................................................................................................29
Over-breadth........................................................................................................................................29
R v. Hall (2002)...............................................................................................................................29
19.0 Freedom of Conscience and Religion...............................................................................................30
19.1 Introduction...................................................................................................................................30
19.2 Sunday Closing Laws....................................................................................................................30
Robertson v. Rosetanni (1963)........................................................................................................30
R. v. Big M Drug Mart (1985).........................................................................................................30
R v. Edwards Books and Art Ltd (1986).........................................................................................31
19.3 Education........................................................................................................................................31
Adler v. Ontario (1996)...................................................................................................................32
Zylberberg v. Sudbury Board of Education (1988).........................................................................32
S.L. and D.J. v. Commission Scolaire des Chenes..........................................................................32
3
15.0 Human Rights at Common Law and Under the Constitution 1867
15.1 Introduction
No charter of rights contained in Canadian Constitution until 1982 nothing that absolutely
limited government actions in favour of individual rights
o
Interpret the Criminal Code strictly principle that favours human rights
Seems like radical, fundamental change but Charter only builds on traditions that are
deeply rooted
Two fundamental principles keeping each other in check (Walk, reconciling parliamentary sovereignty
with rule of law)
o 1) Parliamentary/Legislatures Supremacy/sovereignt : Parliament can make any law it chooses. The
bill of Rights 1689 Supremacy over Monarch. Parliamentary could make or unmake any law they
chose for whatever reason they decided to do it. (The parliament of Canada and the provincial
legislatures; major point in the development of democracy as the parliament became supreme over the
monarchy)
o 2) The Rule of Law: opposite of Parliamentary Supremacy, the laws of the Constitution are not the
source but the consequences of individual rights defined by the courts (Dicey). Exercise of state power
must be authorized by clear rules of positive law. The theory is that unless there is express authorization
for state or government action in written law, the default is for individual liberties. In contrast,
individuals do not need express authorization to carry out liberties in written principles. So for state
action to happen, it needs to be expressly stated in the written and positive law to deny or limit the
individual because if it is not written than the State does not have the authorization to deny or limit
individual liberties.
A.V. Diceys Three Principles of the Rule of Law:
Supremacy of regular law as opposed to arbitrary power;
Equality before the law;
Rights are defined and enforced by the courts
The Rule of Law in the Modern State (H.W. Jones):
o Unthinkable that Govt possesses arbitrary power over persons or interests of the individual;
o All members of society are equally responsible before the law;
o Effective judicial remedies are more important abstract constitutional declarations.
Trial by Jury: purpose was so that judges appointed by the state could not put you away. You had
protection from arbitrary imprisonment.
Impartiality of Judge and Jury: (and to a lesser extent, the independence of the civil service)
Habeas Corpus: Right to know the basis of law, protects against wrongful imprisonment- show me the
body cant hold someone arbitrarily.
Presumption of Innocence (proof beyond a reasonable doubt): Courts must prove guilt of the accused
beyond a reasonable doubt (Wolmington Case)
Due Process/ Principles of Natural Justice: admin law term right to cross-examine, right to be heard,
etc.
Principle of Legality: encompasses four ideaslaw must be accessible, law must be certain, law cannot
be retroactive, law should be constructed strictly in favor of the liberty of the subject.
Fair Comment Defense in Defamation: protection of freedom of expression. important protection in the
freedom of speech (mayor of Windsor does not sue everyone that says something bad about him because
there is this right of fair comment.)
Natural Justice: fair procedure must be used before planning limitations on rights
Private Sphere
Facts
Issue
Reasoning
Holding
Comments
Facts
Issue
Reasoning
Holding
Public Sphere
Martin v. LSBC
o Not allowed to be member of bar because he was Marxist
o Freedom of expression cannot be given to Marxists to poison the minds and destroy our constitution.
Freedom like fire, is a real thing with positive consequences
o
o
o
o
Laws of Federal Govt, Quebec and Manitoba to be published in French/English (s. 133)
o
o
Decade of judicial activism for many reasons Nuremberg trials, Canadian war trials, spawned
international human rights movement.
Rise of social credit party, Quebec leaning union national (two regimes marching to their own beat)
Function
Function
Quasi-constitutional
Robertson and Rosetanni v. The Queen 1963: Sunday closing day laws. Bowling ally in Hamilton and they
want to keep it open on Sunday. The Lords Day Act prevented them from doing this and hence was a
violation of Canadian bill of rights 1c. They Challenge Act based on CBOR. Judges disagree with them. Say
that CBOR is not concerned with HR and fundamental freedoms in any broad sense, and only concerned with
freedoms that existed before the bill. It does not mean you have right to be open on Sundays as in opposition
to the Lords day act. Its not a religious problem its an economic problem.
The Queen v. Drybones (1970): provision in Indian Act, which prohibited Indians from being drunk off the
reserve. Court was appalled by the law and said inoperative b/c did not provide native people with same
equality rights as non-native. Considered huge break in native jurisprudence for HR. [high point of Canadian
bill of rights].
Brownridge v. The Queen (1972): guy stopped for drunk driving, taken to station, asked for breathilizer, guy
refused until had counsel, the police say blow or will charge with refusal to blow. He doesnt blow and they
charge with refusal. Court says wait a second he asked for counsel and should not have been denied this. The
court focused on particular provision from criminal code, without reasonable excuse, denies to use
breathalyzer they said he had a reasonable accuse.
A.G. Canada v. Lavell; Isaac v. Bedard (1973): 12oneBwomen Indian women who married nonIndian women. Deals with the fact that under the Indian Act at the time Indian women who married white
men lost their status as Indians but Indian men who married white women did not loose their status and the
women gained status. This is clearly discriminatory and provide unequal treatment. The court says it does
not violate the CBOR.
Hogan v. The Queen (1975): stopped because thought intoxicated and police asked for breath, guy says
wants lawyer, police threaten to charge with refusal so he gives breath, it is over limit, he is charged. Goes to
court and says that he was denied his right to counsel. Court says that Brownridge does not apply because
there was no reasonable excuse here, and the fact that he gave the evidence, and this was before they said this
kind of evidence would be excluded. It was okay to obtain evidence illegally it would be admitted if relevant.
A.G. Canada v. Canard (1976): About who becomes administrators for Indians who die without wills. The
federal government did this and they had freedom to appoint people not related and not in band. This was
discriminatory b/c white people could name their own administrators. The courts said not violate CBOR
It was the disappointment of the Canadian Bill of Rights that promoted advocates to seek out a Charter
entrenched
10
Relevance in BOR after charter. Beetz, Etsey, McIntyre preferred to declare law inoperative per section
2(e) of the BOR. BOR retains all its force and effect, particularly where there are benefits to be found where
there are none in the charter.
Authorson v. Canada (2003)
Due process rights respecting property that existed in 1960 in the BOR do not exist today. Due process
cannot interfere with legislative right to determine its own procedure.
Courts cannot compel Parliament to change its legislative procedure. Aside from requirements for notice
and opportunity to make submissions, BOR provides for due process only in individualized adjudicative
setting, which is not the case here. It also does not demand that Parliament provide a hearing before enacting
law. Parliament retains right to expropriate property if it made its intentions clear.
Conclusion
Professor David Mullan says not much difference to extent of protection granted in pre-Charter and postCharter days
Complex web of common law, statutory, written and unwritten principles exist alongside the Charter as
protection for human rights and freedoms
Humans rights cause in Canada is strengthened by acknowledging the importance of the principles as
seen in pre-Charter and non-Charter manifestations
11
Because it specifically empowers courts to strike down or fix laws which conflict with rights and
freedoms
Re Drummond Wren
Re Alberta Statutes
Switzman
The Charter is entrenched it applies to both levels of government, and it orders judges to
remedy violations
Charter Model
Constitutional building by the kitchen sink approach if a group wanted in, they got in. e.g. deaf/blind
persons.
Lorraine Winerib Rights Limitations and Override
12
o Simple & accessible. Domestically produced limitation clause. Override provisions. [Elman include
meaningful enforcement]
Elman sees it as: Rights, Limitations, Enforcement Override
Rights = First stage is that you have a Plaintiff/person claiming that their rights were violated
(could be the plaintiff or the defendant as long as they claim that their rights were violated)
Limitations or Justification = Second stage is that you have to prove the violation of the
right (burden of proof is on the plaintiff to prove that their right was infringed on and then the
burden shifts to the Crown to prove that the right that was infringed on was a limitation
allowed in a free and democratic society)
Enforcement = Third stage, three enforcement clauses: s.24(1), general principle, 24(2)
enforcement of exclusion of evidence, s.52(1) this is the only of the three that is mandatory
Rights
Mobility Rights s. 6 dont want provinces putting up barriers to the mobility of individuals.
Equality Rights s. 15
important element of balance between idea of individual rights and Parliamentary sovereignty
Formula: Rights can be limited where they are reasonable, prescribed by law which are justified in a
democratic society (R v. Oakes interpretation of section 1: almost statutory 4 part test: Purpose, 3 part
Proportionality) etc.
its sensitive to parliamentary supremacy one of the methods used to ensure that there is some
both a guarantee of rights (guarantees all rights as stated herein) and a limitation (subject to such
limits as expressed in a free and democratic society)
Enforcement
S.33 last provisions. Domestic non-reviewable, non-emergency override. Only was court can review is
as to matter and form, not as if its a good idea to override a right in situation. This is about political
balancing, has to be renewed every 5 years.
Only applies to s.2, 7-15 are theses of lesser importance? Elman thinks no.
Applies to charter
Hunter v. Southam
o Statute defines present rights and actions that are trying to fix a problem; while constitution is drafter
with an eye to the future and deeply fundamental
The Purposive Approach
Applies to charter
14
Dickson: you have to look at purpose, cant save something that has unconstitutional purpose; Wilson:
you have to look at effect, cant save something with unconstitutional effect. [look at both in exam]
Purpose and Effect
Applies to s.1
Aimed specifically at s.1. Look at rights in context, rights are not absolute. In particular setting, what are
these rights trying/attempting to do.
Abstract approach: does not place heavy emphasis on context of the case, and analyzed the importance of
competing values AT LARGE.
Edmonton Journal v. Alberta (1989)
o Have to look at rights in context of current situation. Not abstract.
o Rights are different in different contexts. Cant evaluate in abstract, have to look at it in the particular
case or area of law.
o Approach to s.1
Right or freedom may have different meanings in different contexts subject to change. Contextual
approach is necessary to determine which competing value should yield to the other. All stages of the
Oakes test should be considered contextually. Value of this approach is to recognize that some
rights/freedoms have different values when placed in different contexts. It is more sensitive to reality
of the case at hand and more conducive to finding a fair compromise between competing values.
Wilson: brings the charter right or freedom to the actual case at hand, instead of talking about freedom
of expression as larger context, she talks about it in the understanding as protecting the open court
principle.
Thompson Newspapers (1998)
o Objective of legislation was to ensure elections were fair
15
Have to look at objective and the underlying value and determine whether the infringement was
reasonable, the court adds that extra factor about contextualizing. Look at the environment where the
freedom is being infringed.
o Not reasonable limit
o Purpose of contextual approach is to allow courts to weigh the value of the speech with the
reasonableness of the limitation. Look at the situation, look at the values, look at the objective.
o Political speech is central to the core.
There is no high value v. low value speech, or equality, but because of s.1 we can easier justify a
limit if we find a particular activity is far from the core of what is being protected by the right e.g.
hate propaganda far from core. Doesnt take much to limit under s.1.
o
Look at rights from perspective of rights holder, not from government perspective
Charter protects pre-existing rights
How far do we go when we are talking about government? Teachers, should they read us rights? What
about the bouncer of the bar who is arresting someone, are they government? Question becomes who is
government.
Internal Aids
S.24(2) English: admission of evidence of proceeding would bring administration into disrepute,
French version says: capable of or could.
o So we go with the French test, because more in favor of charter applicant
As for aids existing outside the Charter, a court may find further guidance as to the meaning of the
Charters guarantees by reference to the documents origins, although the weight attributed to these sources
rests at the discretion of the court.
The minutes of the parliamentary record concerning the Charters adoption may serve as an extrinsic aid
to interpretation, as may a desire to reconcile the Charter with the continued protection of other statutory and
common law rights in Canada, given the express protection extended to these rights by sections 25 and 26.
The Canadian Bill Rights may also exist if only to provide confirmation that the Charter was intended to
be a distinctively different instrument from the Bill of Rights given the latters far from robust record in rights
protection (although responsibility for this must certainly be shared by the Canadian judiciary).
Comparative Rights
Interpretative guidance may also be found in comparative foreign law sources, bill of rights decisions,
American constitutional decisions
16
Given the similarities in may commonwealth constitutions, it is not surprising that comparative
constitutional law should provide a source of interpretative assistance of the Charter. However, one foreign
source with which the Canadian courts have been cautious is the American Bill of rights, which, while useful
in the early days of Charter interpretation, has nevertheless been recognized as having a much different
structure than its much younger Canadian counterpart.
International law may also serve as an aid to Charter interpretation, particularly since in Canada in
contrast to the US, the adoption of a domestic bill of rights followed, rather than preceded, the adoption of
many international treaties for the protection of human rights. The consideration of these treaties can assist
the court in the interpretation of similar domestic guarantees.
Charter Litigation
Stage 1: does the charter apply? S.32, Dolphin, McKinnley, GVTA etc.
Must prove there is a right, and fact supports idea it has been violated. Obligation of party
alleging breach of charter. If not justified what remedies should be given?
Stage 3: If so, is the violation (denial, infringement, limitation) justified as a reasonable limit in a
free and democratic society?
o
o
This burden is on the government, or whoever is alleging that the limitation is reasonable.
E.g. this could be government of Germany if they are extraditing. Balance of probabilities.
This is the oakes test, as modified by chalks, desjardins etc.
Stage 4: If not, should a remedy be granted and, if so, which remedy?
17
3.
If so, is the violation (denial, infringement limitation) justified as a reasonable limit in a free and
democratic society (on the civil standard, the balance of probabilities on AG): Applies to section 1 of the
Charter
4.
If not, should a remedy be granted and if so which remedy?: Remedies are some what discretionary;
Applies to ss. 24(1)(2) and 52; Section 24 onus on person bringing claim on balance of probabilities; burden
on the individual
Formalism: the moral (Protecting rights), political (Enforcing Democracy), and legal (The
Intent of the Framers and the Legal Process) justifications. Court is there to judge disputes.
Petter et al: The Anti-Majoritarian Objection: decisions are being made by unelected
judges, this is fundamentally undemocratic, the damage of the Charter needs to be limited. Doesnt like idea
un-elected judges are overruling legislatures. Wants to see rights protected through democratic process not
courts.
Hogg et al: The Dialogue Theory there is a dialogue theory between Parliament and the
Court. Parliament suggests a law, someone challenges it, if court believes its unconstitutional, they send it back,
Parliament tries its best to comply, then it comes back to court, if is is satisfied court upholds it, if not it is sent
back to Parliament again. Dialogue between legislatures and courts.
Roach: Dialogue Plus: has some protection where judicial review would operate without
any dialogue and you take rights seriously and protect minorities. Dialogue between courts and legislatures but
some things are not apart of that dialogue. Venerable minorities (courts have to be aware); providing
individuals with procedural rights to challenge state action; human dignity and ensure participation by all in
Canadian society. Roll for legislatures for limiting rights but somethings they should not be able to do
How did we manage to become a country and a society, which embraced judicial review?
Elmans PPP: Principle Process, and Personnel courts have always been striking down laws, but have
been doing it through the guise of federalism. Striking laws down to protect rights through federalism.
Personnel changed in 1984 (SCC Judges - Dickson), new people came on and were more open to judicial
enforcement under the charter.
Gardbaum: The Problem is with the Legislative and Executive Branches deals with breakdown of
legislative bodies. Societies become much more interested in judicial review if there are serious problems with
their legislative and executive bodies. Senate is so weak, courts came in to fill the void and act as oversight to
legislatures, as the other part of the bi-cameral legislative system. Elman doesnt necessarily agree.
18
Facts
Issue
Reasoning
Holding
Facts
Issue
Ford v. Canada
One override that commands advertising to be in French only and one override that
states that there should be a French equivalent to names used in commercial
advertising.
Can u revoke the override retroactively?
Cannot override something retrospectively. Prospectively you can. If violation of
Quebec language that occurred prior to the override being invoked, cant go back
and scoop up the behavior, can only move forward
(1) The terms of s. 33 do not contain such a requirement.
(2) Parliament or the Legislature may not be in a position to discern which sections
of the Charter need to be overridden.
(3) Therefore, Parliament or the Legislature must be permitted to identify more that
one right or indeed all of them. Therefore, the s. 52 override is valid.
Retroactivity is not valid.
Once s.33 invoked, beyond judicial scrutiny.
Vriend v. Alberta 1998
Teacher was openly gay, and was fired
Went to AB Human Rights Commission. Statue in Alberta did not provide for sexual
orientation for prohibitive ground of discrimination, said he was out of luck.
Can legislative omission be the subject of a Charter violation?
19
Reasoning
Holding
Elman view
Yes, legislation omission can be subject of Charter violation. Cant violate equality
rights. Language of s.32 does not limit court to interpreting positive acts of the
government only.
They excluded sexual orientation.
Justice Iccabucci, read into the act, sexual orientation under the individual rights and
protection act. Bold move, he re-wrote the law essentially. This is serious judicial
activism.
Determining an omission as wrongful violation of Charter rights does not mean the
court is overstepping its role into legislature. Charter gave each Canadian rights
which no government or judiciary could take away. Where disputes arise as to
justifiable limits of those rights, the courts are the appropriate party to resolve the
dispute. Section 52 (remedies) of the Charter specifically assigns an interpretive role
to the court to declare unconstitutional legislation invalid. Courts are arbiters and
trustees for the Constitution, not for the judiciary. Courts are required to uphold the
Constitution, and are invited to play that role by the document itself. Dialogue
between courts and legislature is extension of democracy.
Alberta did not invoke the override because override was invoked regarding the
serialization settlements, HUGE outcry against government for invoking the
override. Criticism was so severe from various sources, so removed that clause. Due
to this, did not want to go through it again and invoke the override. Canadians see
the invoking of override very seriously.
Public was so invested in charter that government using override was doing so at its
peril.
To the Parliament and government of Canada in respect of all matters within the authority of Parliament
and
B.
To the legislature and government of each province in respect of all matters within the authority of the
legislature of each province
Question 1: Government only or private activity as well? Only government.
This raises an issue of principle: Will we see the Charter as an instrument of vertical integration/effect, or
horizontal affect? Do we see rights documents as between the govt and people, or person to person? Do we
think intent was to include private action in Charter?
Question 2: If government only, what is government? (see Dolphin, McKinnley, GVTA)
20
17.1 Introduction
Applies to any person at law, whether natural or corporate. Have to read rights. Phrases like everyone
applies to any entity, but have to make sure its a right that you can peruse (e.g. corporations having right to
life is a stretch). But look at Big M, that was corporation religious freedom.
Fetus do not apply so s.7.
Who has the benefits of the rights?
o Section 2: everyone has the following fundamental freedom,
o Section 3: Every citizen of Canada [this precludes others]
section 6(1): every citizen of Canada has right to remain and re-enter in Canada (the right to
livelihood and moving is given to not only citizens but people with permanent residence as well).
o Section 10: Everyone on arrest of detention
o Section 11: Any person charged: criminal and penal matters, doesnt necessarily mean you have to
be charged with a federal criminal code, you can raise Charter even if its not federal criminal charge
o Section 13/14: A Party or witness
o Section 15: Every individual: designed to be exclusive to natural persons (we didnt want
corporations coming in and claiming equality rights).
Plain Meaning of Section 32(1): Government: it specifically says it applies to Parliament and
Government.
Heading & Marginal Note: application of the Charter, and this is what the marginal notes say
it appears full model of charter was designed to apply to government, not to private actors
21
Plain meaning: doesnt say government in action etc. its just the plain meaning of government
Heading: no other section talks about the application of the charter, it is only in this section
s.24 (2) = this is about the exclusion of evidence when the administration of justice is brought into
dispute
Legislative History: and to/ in respect of: the words with respect to was not there previously
Originally: and to is an indication that they expected it to apply beyond government in all jurisdiction
with in 91 and 92 which would be everywhere (and to = would have included all actions)
Changed to: in respect of gives us the idea that the goal was to limit it to the parliament and government
of Canada in respect to matters within their jurisdiction (in respect of = limiting the scope)
it seems pretty clear if the and to was left in, it could easily be read to include private actors and it could
apply to everything in entire country (would have been too broad) and hence, it was changed to in respect of.
Statutes generally dont apply to the crown, unless otherwise explicitly said that it does apply
Statutes Do Not Generally Apply to the Crown Unless Stated (Section 32 was put in: Abundance
of Caution, so that the government was not excluded)
They argued that the Charter would apply to private action and the word government was put in not to
exclude private but to ensure that government was include
22
American Bill of Rights: Clearer Wording excluding Private Actions, e.g.Congress (Art. 1)
Looks at American Bill of Rights: clearer wording excluding private actors e.g. congress shall make no
law
Simple Equity: Should Rights be Dependant upon the Party Violating those Rights?
Function
Issue
Reasoning
Holding
23
Elman view
Facts
Issue
Reasoning
Holding
Issue
Holding
Facts
Blainey
Sues Ontario hockey association under Ontario human rights code saying discriminating me
based upon gender.
19(2) Ontario human rights act doesnt apply to sports leagues, so cant play with boys
Is this about government action?
Goes to the SCC. True this is between private entities, but about 19(2) of the ONHRC
SCC says yes, this is about government action, strikes out 19(2) and goes back to ONHRC
and pleads case, and they declare association is discriminatory
You can have charter actions, in the middle of what looks like private disputes.
19(2) was the govt action, so thats how we get to a purely private dispute to use the charter
24
Take away
Issue
Reasoning
Holding
Elman view
25
Issue
Reasoning
Holding
Is a University a Government Actor? LaForest. Even if violation, saved by s.1
No
o Many entities receive Government funding to to accomplish public policy
objectives;
o University has its own governing body;
o Only a minority of members (or none) are appointed by L-G in Council;
o Duty is to act in the best interest of the University and not at the direction of the
Government;
o In employment of professors, they are masters in their own houses;
o Government has no legal power to control the University.
Dissent
Not the law, but it is better than the law - Wilson
1) The control test: does the legislative, executive, or administrative branch of the Govt
exercise general control over the entity? (factors: funding, whether the governing structure
is determined by statute, whether there is day to day involvement, are some of the
decisions are subject to review, do any policies or programs require government approval)
2) The Gov Function Test: does the entity perform a traditional Gov function or a function
26
which in modern times is recognized as a responsibility of the state; uni education is just
the extension of providing for public education
3) The statutory authority or public interest test:
Whether or not the institution in question was acting under statutory authority (created by
statute) and whether it was created by statute to pursue a purpose that government
delegated to it (ex, a statute created for private to take care of prison)/ is the entity one that
acts pursuant to the statutory authority specifically granted to it to further a public interest
objective. in the broader public interest?
Wilson applied this test and determined that universities are government.
Elman agrees with this. For an exam, could go through these three prongs. Dont have to
comply with all three parts, if missing one, not fatal. Elman things his perspective is colored
by judges prior involvement in being Dean of Universities
Note
Douglas Quantum Case:
Some factors for Community Colleges: All board members appointed by govt, subject to
control of government, part of apparatus of government in form and fact.
Aftermath of McKinney
Douglas/Kwantlen Faculty Assoc v. Douglas College: members appointed by the government and
other requirements that keep them under control. According to case law community colleges are government.
Stoffman v. Vancouver General: not government, they act separately in regulating hospital
Eldridge v. B.C.: not providing sign language in hospitals government here b/c its a service
that they are providing [very important case] para 44 at 828 (go to for exam). If this appears on EXAM
this is what you need to cite to determine if government action.
o
Distinguished from Soffman, Stoffmann they were implementing an internal policy and
not exercising statutory power.
27
compulsion or coercion. 2) where the body is implementing a specific governmental purpose or program
delegated by state.
o
(1) it may be determined entity itself is government for purposes of 32. Is it by its very
nature government? Or government because of degree of control being exercised over it as government. If
entity is determined to be government, everything they do is subject to the Charter e.g. Douglas College
(2) is the activity one that promotes a government policy/agenda etc. This demands an
investigation into the nature of the activity itself. Must scrutinize the quality of the act at issue, not the
actor. E.g. implementation of specific statutory scheme or a government program, the entity will be subject
to the Charter (such as the delivery of medical services) will be reviewed in respect to the act and not other
activities. Delivery of medical services is a government activity, Hospital private, but activity is public and
therefore scrutinized under the Charter.
Hospitals are private, but if exercising public government power and are responsible for
implementing government policy then will be subject to charter scrutiny in that regard. Hypo school
who is implementing government policy will be subject to charter in so far as they are implementing that.
Not beyond, however.
For exam use this case. With Wilson test, back up with GVTA.
Government Acts
GVTA Case
Does charter apply? Yes, can apply 2(b) to this. Translink is itself a government entity, so charter applies.
application of 1st rule of Eldridge (Degree of control being exercised over it)
Facts
Issue
Holding
Elman view
located.
US Supreme Court said this is a illegal detention of Khdar, so if in fact there is an
ongoing violation of human rights, then there is no reason to follow the laws of the
territory, because it would be contrary to Canadas obligation under the Geneva
Convention and therefore Charter does apply.
Order disclosure of CISIS transmission to US officials
Interesting because based on ruling of US SC that it was illegal.
If it was legal, would follow laws of territory, but once violation of human rights
law, culmaty is out the window and we follow the charter.
Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can demonstrably justified in a free and
democratic society.
Prescribed by law states that limitations on rights must be expressly or implicitly mandated by statute or
by common law and be set out with sufficient precision so as to be clearly ascertainable. Government actor
cant just do something, and say it is justified under the charter. Has to be rational connection/basis with
statute.
S.1 should not be applied arbitrarily, and must be accessible to citizens to seek parameters
If the limit is not prescribed by law, then it can never be a reasonable limit in a free a democratic society
Must be intelligible standard.
Therins = not prescribed by law as soon as possible was implied you would get counsel
Thomsen = prescribed by law by implication. forthwith meant that it was a mandatory immediate thing,
therefore it was prescribed by law and reasonable limit
29
Miracle = to have prescribed by law through prescription of discretion on statue (e.g. minister can do
something) then that person must act within their discretion when trying to use s.1.
Alberta = regulation/by-laws are included in prescribed by law
Facts
Issue
Reasonin
g
Holding
Facts
Holding
Facts
Holding
R v. Therens 1985
Supreme Court Canada
Involved an impaired driver. Was not instructed of his rights when taken to the police
station.
Was his right to be informed of right to counsel infringed and if so, was it subject to limit
under s.1
The words prescribed by law make clear that an act not legally authorized can never be
justified under s.1, no matter how reasonable and demonstrably justified as it appears to
be
If violation of right, dont get to justify violation under s.1 if it is not mandated in statute
Limits cannot be open-ended/vague/arbitrary (miracle case) mitigating government
abuse of vague/arbitrary/openedended laws.
Prescribed by law is the threshold you must get over, in order to use s.1
General Proposition:
o A Limit will be Prescribed by Law if it is Expressly provided for by Statute or
Regulation or if it results by Necessary Implication from the terms of a statute or
regulation or from its operating requirements.
o The Limit may also result from the application of the Common Law
o Prescribed by law has two requirements: 1) accessibility & 2) precision
o Accessibility a statute, regulation or rule of common law will quality, statutes,
regulations, by-laws
o Precision a limit on a right need not be express, but may by implication from the
terms of a legislative provision or its operating requirements.
o General Proposition: A Limit will be Prescribed by Law if it is Expressly provided
for by Statute or Regulation or if it results by Necessary Implication from the terms of
a statute or regulation or from its operating requirements. The Limit may also result
from the application of the Common Law.
R v. Thomsen 1988
Supreme Court Canada
Criminal Code said forthwith and not as soon as practicable
Therefore, it was implied by law, that no counsel could be used.
Prescribed by law can mean express or implied by the statute/criminal code
Miracle et al. v. Ontario 2005
Sign on 401 against law, said it was against his freedom of expression
Looking for: intelligible standard otherwise not a prescription of law.
Purpose behind prescribed by law was to ensure you were making a decision on the
justificatory stage based on intelligible standards.
30
Facts
Reasonin
g
Where there is a discretion involved via statute, that discretion can only be used within
parameters and objectives of legislation
Prescribed by Law
Law is not taken in its narrowest sense; the Court has adopted a flexible approach:
o
Regulations;
Common Law;
Municipal By-laws;
GVTA v. CFS
Promoting policies presents a problem, because policies can have general application and
organization/housekeeping policies
Holding: extends scope prescribed by law policies which are binding rules of general application
where entity is authorized to pass them.
o Test In exam if get question about policies, this is the test:
1) Was the govt entity authorized to enact the impugned policies and are the policies binding rules
of general application? If so, the policies can be considered law. (Policies focused on indoor
management will not be considered law.)
2) Are they sufficiently precise and assessable?
31
Vagueness
If there has been vagueness, can bring it up under s.7. Vague laws are not principles of fundamental
justice.
Can bring it up in s.1 in limine (at beginning of trial) if law is vague, cant get prescribed by law
Vague laws may also be relevant to minimal impairment, and usually dealt with by that prong.
Based upon rule of law, particularly principles of fair notice to citizenry and the setting of limitations on
the discretion of law enforcement.
Cant come up with meaning of law if the law is vague, therefore cannot be prescribed by law. Hard for
courts to determine conclusion they should reach; no limit on enforcement; no fair notice etc.
A Vague Law does not provide an adequate basis for legal debate, I.e. for reaching a
conclusion as to its meaning by reasoned analysis applying legal doctrine. It does not sufficiently
delineate any area of risk, and thus does not provide fair notice nor a limitation on enforcement
discretion.
The Court will be reluctant to find a disposition so vague as not to qualify as law under
section in limine but will rather consider the scope of the disposition under the minimal impairment test.
Edwards Book and Art Shop Case- avoid rigid and inflexible standards, abridges the
right or freedom as little as reasonably possible is there some reasonable
alternative scheme which would allow the province to achieve its objective with
fewer detrimental effects on the right or freedom- less rigid
3. Balancing Test: There must be a proportionality between the effects of the measures
which are responsible for limiting the Charter right or freedom, and the objective which
has been identified as of "sufficient importance. Importance of the objective must
outweigh the effects of the limitation on the right or freedom and there must be
proportionality between the deleterious and salutary effects (this second part was added
from the Deganias v. CBC Case). With 2nd aspect, the salutary effects outweigh any
negative effects. E.g. hate propaganda, this would require the government showing that
there are positive aspects for criminalization it over the negative impacts.
Note: the effect of this development was that it's a difficult requirement because it
implies that the state must some how convince court that there are benefits to this limitation.
Courts had to liberalize the Oakes test with the various cases.
Chart
Subject
Function
Objective
Means
Strict
Compelling,
overriding, or
substantial
Intermediate
Gender, nationality,
citizenship, etc.
Important, significant,
persuasive
Minimal
Economics, business,
and social welfare
Legitimate, reasonable,
rational
Dagenais v. CBC
Rephrased 3 part of proportionality test see above
Much more grounded balancing, now about effect and effect
Essentially, 2 parts of the 3rd prong. 1) Proportionality between the deleterious effects of the
rd
33
measures (negative effects) and 2) the objective itself; and proportionality between the
deleterious effects and the salutary effects of the measure (benefits)
Function
Function
Function
Functio
n
Take
Away
Functio
n
Take
Away
34
Vagueness
Doctrine that says: A Vague Law does not provide an adequate basis for legal debate, I.e. for
reaching a conclusion as to its meaning by reasoned analysis applying legal doctrine. It does not sufficiently
delineate any area of risk, and thus does not provide fair notice nor a limitation on enforcement discretion.
this is why something is vague.
Prescribed by law very unlikely a court will stop an inquiry into justification phase because it
is prescribed by law
Morales Vagueness as it relates to minimal impairment merges with the concept of overbreadth.
Vagueness limits law enforcement discretion.
Over-breadth
Not a doctrine, its an analytical tool to see if there is a charter violation. Dont have to be vague, just over
broad
Heywood: Lack of notice requirement; Geographical ambit; Life time prohibition without a
review process; As to the people who it applies [over broad in all of these aspects] If legislation is to
board, wont allow use and wont pass minimal impairment and therefore not constitutional.
Function
R v. Hall (2002)
S.515(10)(c): Judicial Interim Release
o Query: what are the difficulties in criminal code provision listed above with
vagueness and over-breadth?
SCC upheld constitutionally 5-4
o The balance of above provision, is valid, denial of bail to maintain confidence in
the administration of justice applies to 11(e) and more narrow than public interest
ground.
o Provision is not over broad, striking balance between rights of accused and need to
create safety in community
Dissent: not sufficiently precise, little more than faade of precision. Too vague. Already
covered by other provisions. This revives old public interest ground that has been revoked.
35
19.1 Introduction
You do not need to prove harm, there mere fact that you are not free to practice or refrain from
practice is sufficient.
Freedom of religion is the right to practice religion as well as freedom from coercion or restraint.
A law that increases the costs of practicing ones religion may also constitute an infringement.
Areas in contention: Sunday closing laws; education and religion issues; personal fundamental
decisions; same sex marriage; planning laws.
Facts
Issue
Reasonin
g
Holding
2)
The right to declare religious beliefs openly and w/o fear of hindrance or
reprisal;
3)
The right to manifest religious belief by worship and practice or by teaching and
dissemination;
4)
36
Can see coercion 2 ways: direct compulsion thou shalt not; but thou shalt work
on Sabbath.
these are the principles that drive the rest of the section
Government MAY NOT coerce individuals to affirm a specific religious belief or manifest
a specific religious practice for a sectarian purpose. Freedom of religion is both group and
personal.
The Government may not coerce individuals to affirm a specific religious belief or manifest
a specific religious practice for a sectarian purpose [directly or indirectly]
Cant have shifting purposes of legislation govt was saying, wasnt about LDA, but
about pause day. BUT cant have shifting purposes.
Ratio
Facts
Issue
Reasonin
g
37
Holding
an exemption. Allowing to operate business with 7 employees and 5000 sq/ft of space if
they paused on the previous Saturday.
Dickson: Uphold the legislation and find that it is a reasonable limit in a free and
democratic society.
Passes oakes, because of exception and not religious in nature, about allowing universal
pause day, no shifting purpose like Big M.
Wilson: dissents. It is coercive, indirectly.
19.3 Education
Facts
Issue
Reasonin
g
Holding
Facts
Issue
Reasonin
g
Holding
Facts
Issue
Reasoning
Holding
Compare
w/ S.L.
Facts
Issue
Reasonin
g
Holding
Stigmatizes the students as non-conformists and sets them apart from members of the
dominant religion
Cannot be saved by s.1
Must look at violation/coercion from standpoint of non-believers.
S.L. and D.J. v. Commission Scolaire des Chenes
Quebec CA
2008 ethics and religious culture program was mandatory in Quebec
Concerns of parents: trying to educate in Catholic schools, and since the ERC course takes
away/teaches from a neutral perspective and therefore not Catholic. Wasnt kids exempt from
it.
Was ERC course against s.2(a) rights coercion
The formal purpose does not transmit a philosophy or influence young people
particular/specific beliefs
Does not infringe religious freedom because not actively trying to change beliefs. Must adhere
to the multicultural nature of Canada.
Refusal by board to exempt children did not violate their rights
Loyola High School v. Quebec
Involves same ERC program at heart of previous case BUT this is from point of view from
private religious school Loyola College High School
Tried to get exemption to not teach ERC program
Teaching ERC from catholic perspective
Is the ERC against s.2(a) and infringing on Loyola High School
Cant limit religious freedom of peoples who send children to the Loyola high school
private catholic institution.
Collective aspects of religious freedoms
The requirement to teach ERC from neutral perspective limited freedom of religion more than
necessary given statutory objectives
Why were parents unsuccessful, but college was (S.L)?
Public school public system was catholic system. PRIVATE school so not government.
TWU v. BCCT
TWU was an attempt to get accreditation for law school, teaching Christian world view.
BCCT denied application due to human rights violations (sexual sins etc. were not allowed)
Whether BCCT has jurisdiction to consider discriminatory practices of a private institution?
SCC based decision on administrative law and not constitution
Absent concrete evidence showing TWU fosters discrimination in public schools, the right to
adhere to certain beliefs while at TWU must be respected
Freedom of religion and guarantee against discrimination is not absolute
Religious institution is not in breach of human rights legislation where it prefers adherents of
its religious constituency
39
Dissent
LHuereaux: must protect vunerable groups such as homosexuals and bisexual communities
Facts
Issue
Reasoning
Holding
40
Canadian
Foundatio
n Case v.
Canada
Facts
Reasonin
g
Holding
Exam
Hypo
Melika
Salt
of religion does not include imposition of religious practices on a child which threatens the
safety, life or health of the child.
Freedom of religion can in-fact be raised by parents who are suggesting in corporal
punishment is the result of a religious dictate.
Determine parameters of s.43 for corporal punishment. Court reinterpreted what 43 means
and parental rights to engage in corporal punishment
A.C. v. Manitoba
Supreme Court Canada
Child was 14, 10 months suffering from Chrons, Jehovah, she didnt want treatment, and
signed a directive saying no matter what, dont give me blood.
Note: once child is 16, can refuse blood
The Director of Child and Family Services apprehended her as a child in need of protection,
and sought a treatment order from the court under s. 25(8) of the Manitoba Child and Family
Services Act, by which the court may authorize treatment that it considers to be in the childs
best interests
Best interest standard operates on a sliding scale, based upon the seriousness of the illness
and maturity of child. As condition is more serious, greater scrutiny on decisions; more
mature child is, more likely child can get her way [Justice Abella]
The result of this interpretation of s. 25(8) is that young people under 16 will have the
right to demonstrate mature medical decisional capacity
Factors involved in determining sliding scale:
o In assessing an adolescents maturity, a judge should take into account
o (1) the nature, purpose and utility of the recommended medical treatment and its risks
and benefits;
o (2) the adolescents intellectual capacity and the degree of sophistication to understand
the information relevant to making the decision and to appreciate the potential
consequences; (this is focused on the child)
o (3) the stability of the adolescents views and whether they are a true reflection of his
or her core values and beliefs; (community is this really her decision or is she being
unduly influence)
o (4) the potential impact of the adolescents lifestyle, family relationships and broader
social affiliations on his or her ability to exercise independent judgment;
o (5) the existence of any emotional or psychiatric vulnerabilities and the impact of the
adolescents illness on his or her decision-making ability.
Any relevant information from adults who know the adolescent may also factor into the
assessment.
Appeal dismissed; s.2(a) was not violated. No arbitrary, discriminatory or violation of
religious freedom.
If we get a hypo on physician assisted suicide and childrens requesting relief
Look at the sliding scale
What about aboriginals who want to get alternative treatment for cancer? Does it touch on
their indianess under s.35? How does the sliding scale operate? Upheld right to refuse chemo
therapy.
41
Facts
Issue
Reasonin
g
Holding
Dissent
Facts
Issue
Reasonin
g
Bruker v. Marcovitz
Supreme Court Canada
Jewish husband refused to give wife Get under Jewish law to allow her to remarry
Moral obligation to give get was transformed into legally binding obligation and it was
formalized, therefore court could determine if unconstitutional;
Under civil obligation, wife sued
S.21.1/ 6 divorce act says this section does not apply where the power to remove the barrier
to religious remarriage lies with a religious body or official
Can Jewish husband refuse under s.2(a) to give wife ghet to get divorced
Must consider sincerity in religious conviction. Very important when determining s.2(a).
Religion does not require him to refuse the ghet
Refusal to grant ghet denies womans ability to remarry and live life in accordance with
HER religious beliefs.
Para 20: this case represents yet another case in which the claim to religious protection is
balanced against competing interests.
Must take into account when assessing 2(a) claims
o 1) particular religion
o 2) particular religious right
o 3) public/personal consequences
o 4) the religious consequences
Abella is not convinced that it was a genuine religions belief
Did not allow husband to use religious freedom as a shield, the court is protecting public
policy and contractual obligations these factors outweigh the husbands freedom of
religion.
Concerned about unwarranted trespass into religion
Syndicat Northcrest v. Amselem (2004)
Supreme Court Canada
Jewish hut on balcony
Under city by-laws was not allowed, but set up anyways. Condo company said we will put one
in common area for you to use. Amselem wasnt happy.
Whether prohibiting these hits on balconies was violation of s.2(a) freedom of religion
Iacobucci: defined religious freedoms:
o Religion is about freely and deeply held personal convictions or beliefs connected to
an individuals spiritual faith and integrally linked to ones self-definition and spiritual
fulfillment, the practices of which allow individuals to foster a connection with the
Divine or with the subject or object of that religious faith
o Defined Broadly, Religion typically involves a particular and comprehensive system of
faith and worship;
o Religion also tends to involve the belief in a Divine, Superhuman, or Controlling
Power
1. Emphasis on Personal Choice Freedom of Religion should not construed as protecting
42
Holding
How to
contrast
with
Bruker
Hutterite
Case
only those aspects of religious belief or conduct that are objectively recognized by religious
experts as being obligatory tenets or precepts or a particular religion. it doesnt matter what
the priest/Rabbi says are requirements of the religion. This is about ones personal choice and
conviction, self-definition, own spiritual faith. As opposed to what religion thinks is
objectively required. SUBJECTIVE NOT OBJECTIVE.
2. Claimants should not need to prove the objective validity of their beliefs, in that their
beliefs are objectively recognized as valid by other members of the same religion need not
show some objective religious obligation;
3. Such an inquiry is not appropriate for the Court Courts should not interfere with personal
religious belief and should not interpret or determine appropriate religious belief or conduct;
**Dueling rabbis saying yes this is required other says no not required
4. The test that the courts may inquire into is the sincerity of the religious belief; is the
belief sincerely held
5. The test for sincerity is minimal a test of good faith, neither fictitious nor capricious, and
that is not an artifice;
6. Assessment of sincerity (credibility) is an issue of fact that determination of which may be
based upon credibility and consistency with other current religious practices not based on
what they have done before, but what they are currently doing.
7. The interference with religious freedom must be more than trivial or transitory examine
the context of each case;
8. Freedom of Religion is not unlimited look at the rights of others and whether the
limitation on the right is imposed to protect against harm.
Condo infringed on Mr. Amselems freedom of religion under s.2(a)
Abella said that there is no objective reason why were not giving her the get so he must do
so BUT the court in this case says, well, you dont need objective you need subjective
views. Contrast with previous case, kind of like, well they said it must be objective, Amselem
said it can be subjective.
ONLY way to rationalize these two cases; in the Bruker case, Abella thought he was spiteful in
not granting the get. Amselem is not being spiteful
Exemption to not have pics on licenses, but now have to have pics, it was upheld that did not
violate s.2(a) on the basis that it was a safety issue.
Good quote for freedom of conscience:
Freedom of thought, conscience and religion is one of the foundations of a democratic
society within the meaning of the Convention. It is, in its religious dimension, one of the
most vital elements that go to make up the identity of believers and their conception of life,
but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The
pluralism indissociable from a democratic society, which has been dearly won over the
centuries, depends on it.
Requirement passed s.1 and was minimally impairing.
Need to balance reasonable accommodation with minimally impairment
43
2.
a.
a.
Is the claimant claiming interference with the form (i.e. method or location) of expression?
a. Does the noise have expressive content?
b. If so, does the method or location of the expression remove protection?
c. If there is a violation with the form of expression, can it be saved by s 1?
20.1 Introduction
Essential to functioning of a democracy and link to existence of all rights and freedoms
Different types of expression
Need to think of the historical and contextual reasons for expression being contained in the Constitution
Expressive activity is a problem but needs to be limited by government in a way that promotes
openness and tolerance
44
Contrast with US
o [see attached sheet]
Ford v. Quebec
Supreme Court Canada
generally the values said to justify the constitutional protection of freedom of expression
are stated as three-fold in nature, as appears from the article by professor sharpe:
o 1. Freedom of expression is essential to intelligent and democratic self-government
o 2. Freedom of expression protects an open exchange of views
o 3. Freedom of expression is to be protected because it is essential to personal
growth and self-realization
Irwin Toy v. Quebec (1989)
Supreme Court Canada
Function
Facts
Reasonin
g
Affirmed Ford
***VERY IMPORTANT CASE*** Sets up structure for all freedom of expression law.
Must apply all of the steps in freedom of expression analysis.
Advertising to people under 13 years of age. Quebec consumer protection Act wanted to
ban use of cartoons to advertise to children/sell products.
Did this infringe on freedom of expression? (s.2(b))
o Step 1: does the applicants activity properly fall within Freedom of
Expression?
Does the activity constitute expression? Is the activity expressive and convey
meaning?
Expression refers to content and form, because they are linked
Any activity will be considered expressive if attempts to convey meaning.
Therefore, cannot exclude protection of 2(b) based on content or meaning
Expression can contain actions. Recognize that some activity is purely physical
and does not convey or attempt to convey meaning; this activity will not be
protected unless there is an actual effect on freedom of expression.
Note: violence as a form of expression receives no protection. (we want to
make sure that everyone can manifest thoughts opinion and beliefs even if
contrary to mainstream ideas---because we value a diversity of ideas and
opinions) Purely physical is not expression if not attempting to convey meaning
o Step 2: Was the purpose or effect of the government action to restrict freedom
of expression
45
Holding
Hypo
Purpose:
(1) Restrict content by singling out particular meaning that was not to be conveyed;
(2) Restrict form of expression so as to restrict access of others to the meaning being
conveyed or restricting the ability of the one conveying the meaning to do so.
BUT (3) Where the Government aims to control only the physical consequences of activity,
regardless of meaning, it is not controlling expression
o The question becomes: does the mischief consist in the meaning of the
activity or in the purported influence the meaning has on the behavior of
others or only the direct physical results of the activity? E.g. posting on the
telephone poll. Cities disallow this on the basis of the physical nuisance,
NOT the speech itself consequences of activity, govt can do that even if
it limits freedom of speech
Step 3: Effects: Applicant must show that the activity promotes one of the underlying
principles of free expression
Applicant must at least identify the meaning to be conveyed and how it relates
to (1) the pursuit of truth, (2) participation in the Community, or (3) individual
self-fulfillment [Ford v. Quebec]
There was a violation of s.2(b)
With regards to s.1. Met minimal impairment, advertising was rationally connected to the
goal of protecting children, effects of the ban were not so severe to outweigh the
governments pressing and substantial objective
This is the structure to use, with slight alterations when were dealing with particular
locations and places (Montreal by-law case; GVTA etc.) also slightly alter with allegations
of positive rights (government having to provide you with freedom of expression Beir
case)
Consider defamation falls under tort generally, concerns ones reputation as an individual
o
Group defamation
Concern with hate propaganda is that it can lead to violence clear and present danger
from the language and does it constitute fighting words
o
Words said in context where its likely that violence will ensue
o
Look at consequences of the language to determine this
Theory that people listening/buying the words are more likely to cause violence
than the people actually writing hate speech
46
Facts
Issue
Reasonin
g
R v. Keegstra (1990)
Supreme Court Canada
This outlines under criminal code/criminal law what hate speech is.
School teacher described Jewish people to students as bad people (subversive, power
hungry etc.)
Charged under s.319(2) of the CC, claimed it was his s.2(b) right
Was s.319(2) a violation of s.2(b)? could violation by s.319(2) be saved under s.1?
Issue 1: Is there a violation of the right? (apply the test in Irwin Toy)
Court said that hate speech prohibition does violate freedom of expression (words
are neither violence nor analogous to violence)
Said the expression was intended to convey meaning and thus gets the protection
Pressing And Substantial: Hate propaganda is far from the Core Values of 2b It
should not be accorded the greatest weight in s. 1 balancing;
Look at the The Harm Principle: (1) Members of the Target Group (2) Society at
Large
Held: 1st part of test is passed.
Held: There is a rational connection between the objective and the means.
Rational Connection: it is rationally connected.
47
Held: The importance of the Objective outweighs the deleterious effects on the right.
Benefits v. Burdens: The importance of the objective outweighs the deleterious effects on
the right.
Holding
Dissent
Facts
Issue
Holding
48
Requirement proof
o Mens Rea Wilful conscious purpose to promote hate
o Identifiable Groups colour, race, religion, ethic, origin, sexual orientation
o Other than in private conservation
o Disprove religious subject defense beyond a reasonable doubt
o Disprove mistaken belief defense beyond a reasonable doubt
o Disprove removal/refutation defense beyond a reasonable doubt
o Accused may still escape conviction if he proves truth of statements
The Queen v. Buzzanga and Durocher (1979):
Failure to prove that the conscious purpose of the statements were to promote hatred of
Francophones;
Failure to prove that the conscious purpose of the statements were to promote hatred of Jews;
Failure to make out the element of communicating by sale or displaying and offering for sale White
Supremacist CDs.
Note: Does not include cases where AG refused to proceed with prosecution.
Alternatives to Criminal Sanctions:
Specific Human Rights provisions to deal with Hate Propaganda (e.g. John Ross Taylor);
49
Correct labeling.
The Queen v. Mueller aka Sentana-Ries (16 months heaviest sentence to date plus 3 yr probation);
Zundel v. Canada and Citron and the CHRC v. Zundel) the Zundelsite;
C.H.R.C. v. Bahr, Kouba, and the WCFU (Fines to the two individual respondents and the group:
$17,500 in total plus permanent orders to cease internet hate posting).
Facts
Issue
Reasonin
g
SHRC v. Whatcott
Supreme Court Canada
Where Keegstra outlines the Criminal Law side of things; this outlines the Human Right
side of things.
Anti-gay leaflets/flyers were distributed
Complaint under the Sask. Human Rights Code s.14(1)(b)
Was this hate speech? Is it protected by s.2(b)?
Three Principles [para 56-59]
o 1) Courts must apply the hate speech prohibitions objectively: would a reasonable
person, aware of the context and circumstances, view the expression as exposing the
protected group to hatred. [Objective test]
o 2) The legislative term hatred or hatred or contempt must be interpreted as
restricted to those extreme manifestations of the emotion described by the words
detestation and vilification. This filters out expression which is repugnant and
offensive but does not incite the level of abhorrence, de-legitimization, and rejection
that risks causing discrimination or other harmful effects.
o 3) Focus of analysis on the effect of the expression at issue whether it is likely to
expose the targeted individual or group to hatred by others. The repugnancy of the
ideas expressed is not sufficient to justify the restriction on speech. Whether or not
50
Holding
Elman
interestin
g note
2) Pornography
Facts
Issue
Reasonin
g
51
Holding
Facts
Issue
Reasonin
g
o What Canadians would not tolerate other Canadians being exposed to because of
the risk of harm. This is a national test, not one of locality.
Same principle underlying hate propaganda risk of harm
Degradation or Dehumanization test is the subordination, servile submission or
humiliation undue?
o The defense is: internal necessities test/artistic defense justifiable advancing plot
or theme undue?
Pornography is divided into 3 areas
o 1. Explicit sex with violence it is undue and a violation of s. 163(8);
o 2. Explicit sex without violence but which is degrading and dehumanizing what
would the community tolerate other Canadians being exposed to on the basis of the
degree of harm that flows from the exposure; what is incompatible with the proper
functioning of society undue if risk of harm is substantial; grey area. Alters the
definition of the section. Narrow scope of what section includes.
o 3. Explicit sex without violence which is not degrading and dehumanizing not
covered by s. 163(8); not undue unless children are employed;
NOTE: The Internal Necessities Test Follows. Once you find out that something is
in one of the top 2 categories, then you see if it will pass the Internal Necessities
Test
Is s.163(8) a reasonable limit in free and democratic society (this is after they have
reinterpreted the provision)
This case, the court was prepared to shift the objective (Against Big M) not about moral
anymore, it is now about harm to women and children.
Proportionality generally determined that expression does not directly engage the core
and is for economic profit;
Rational Connection Even though the social science evidence is inconclusive can say
that there is a reasoned apprehension of harm;
Held: Section passes the rational connection test
On Minimal Impairment only designed to catch material where there is a risk of harm,
not erotica; SECTION does not extend to private use;
Section passes the minimal impairment test
Little Sisters Book Emporium
Involving custom act little sisters was claiming that custom officials were prohibiting
gay/lesbian/homo material from coming into the country under their powers in the custom
act, but not doing this to heterosexual material. Saying law was flawed and that officials
who were applying the law were content focused.
Arguments from Little Sisters the community standards test was incompatible with the
charter, trying to carve out a different standard
Should their be a new test for homosexual pornography
Binnie: the community standards test is about harm not taste. Community standards test
forwarded the idea that it was about harm; not taste
The constitutional space does not shrink because of geography, context or community
not limited to locale, or non-geographical community (i.e. gay community). Community
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Holding
Dissent
Facts
Reasonin
g
Holding
3) Commercial Expression
2 reasons to protect: 1) it does not literally fall within the meaning of the word expression, 2) very
difficult to distinguish commercial and other types of speech
Canada v. JTI-MacDonald
Function
Speech for profit is enforced just the same as all other speech.
All speech is the same in Canadian Law
Issue
Does the fact that speech is for profit, change the way we enforce s.2(b) for freedom of
expression
Reasonin No difference between speech and profit between political. All speech is equal, and should
g
be dealt with equally.
When interpreting speech, must take a large and liberal interpretation of s.2(b)
BUT when, commercial expression is used to induce people to engage in harmful and
addictive behaviors, its value is tenuous
Holding
Objective of s.2(b) is pressing and substantial. Regulate peoples health. Passes s.1 as a
reasonable limitation in free and democratic society.
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Note: political speech is at the core of freedom of expression. Based on issues to autonomy, dignity, liberal
democracies etc. and is at the core. review Thompson newspaper if you want more in-depth.
Holding
Test
iii. Aspects of the place suggest that by denying expression, one would
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a. Purpose: Yes
b. effect: Yes: The purpose of the law effectively limits expression
Reasonin
g
Holding
Facts
Reasonin
g
Elman
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