Application of the Charter (2)

R. v. Edwards Books and Art (1986)
Prov. Sunday closing legis co-existed with Lord’s Day Act (thanks to the double aspect doctrine, discussed in POLS 3600.  The Lord's Day Act had been valid under the federal Criminal law power, until the Act was struck down by the SCC in Big M.  Now, Sunday closing legislation is purely a provincial resonsibilitiy under S. 92(13) of the Constitution Act, 1982.)

In 1983, the Ontario Retail Business Holidays Act was challenged by Edwards Books & Art, & 3 other businesses.
The Act said that most retail business must close Sundays.  However, those with less than 5000 sq ft and fewer than 8 employees can stay open, if closed on Saturdays.  (This is so Saturday religious observers can close on Saturday, and open Sunday instead, without inconveniencing too many employees, who might be Sunday observers.)
Objective of legislation:  create a weekly holiday generally available
Dickson:  no religious purpose, so no direct violation of S. 2.  However, there’s an indirect and unintentional violation, because the Retail Bus Holidays Act, places a greater burden on non-Sunday observers.  Religious observance is easy for Sunday observers, and more diffucult for those who observe another holy day.  Indirect and unintential Charter violations are nevertheless Charter violations.

Section 1 Analysis:
Part I of Oakes Test: is objective of legislation substantially important?  Yes.  "The opportunity for families to spend time together is 'a pressing and substantial concern.'”

Second part of Oakes test:

a) rational connection:  if objective so important, why are there so many exceptions (eg. factories non-retail businesses)?  Answered by 1970 Ont Law Ref Comm Report.  Unions protect non-retail workers, and there's a need for entertainment on Sundays.  Rational connection test is passed.
b) minimal interference of rights:  What are the alternative policy approches brought to the court's attention by the businesses, and do any of them interfere with rights less?
    Alternatives:  1. Anyone can refuse work on Sundays.
                         2.  Those employers with religions convictions can choose their closure day.
                         3.  Remove size restriction for Saturday observers.
    Majority:  All alternatives inadequate, create more problems than they solve, so minimal interference test is passed.
Dissenters:  Wilson:  favoured 3rd alternative.  “duty to accommodate” already there.  Beetz:  All that’s needed is right not to work on Sundays.  La Forest:  Cts shouldn’t second-guess legislatures.

c) overall balance:  majority agree test is passed

Dolphin Delivery (1986)
Impugned:  a court order made under common law that prohibited secondary picketing until legal issues determined
McIntyre wrote decision.
1.  Does Charter cover common law?
2.  If so, does Charter cover common law in private law area?

First issue:  The Charter does cover common law. (s. 52 of CA, 1982 states:  "any law inconsistent with constitution is of no force or effect."  The common law is part of the "law."

Second issue:  Coes the Charter cover common law in private law area?  Must look at S. 32 of Charter:  What does “government” mean here?  Charter applies to all enacted laws, whether private or public, but not to contracts made according to private law.

There are two ways in which the word "government" is used.  One refers to the three "branches of government" (from Montesquieu), and from this perspective, the courts would be included.  The other way is that "government" means "the cabinet."  McIntyre rejects Montesquieu’s definition of government.  “Government” is commonly used to refer to executive branch only.  If “gov’t” refererred to courts, all judicial orders in private law would be covered, and so the Charter would apply to private law.  That application of the Charter was not intended by the framers of the Charter.

To quell fears, McIntyre writes in obiter that the Courts will apply same principles to private law decisions with human rights implications anyway.  So, why didn't the Court just say that the Charter applies to private law?  I think they feared the enormous mass of litigation that would result.

In obiter, McIntyre dealt with the issue of whether secondary picketing, if governed by legislation, could be restricted by the courts.  He says that if secondary picketing was governed by legislation, a ban on secondary picketing would violate S. 2 of the Charter, because picketing is a form of expression (Beetz dissenting).  However, the Oakes test for limiting the right would be passed, because Union members can express themselves elsewhere (minimal impairment), and those not directly involved in a labour dispute have a right not to be harmed.

Wilson wrote a separate concurring decision, applying the Oakes test in more detail.

BCGEU (B.C. Government Employees Union) case (1988)
The prov. govt employees’ union in B.C. went on strike in 1983, and picketed Vancouver Courthouse.  CJ of B.C. issued an ex parte (without the involvement of other parties) injunction prohibiting picketing of the Courthouse.  Union appealed all the way to the SCC, but lost, given the relevant parts of the Dolphin Delivery precedent.  Argument:  the courts are there to protect rights.  If we can't get to court because of a picket line, how can our rights be protected?

McKinney v. University of Guelph (1987)
York, U of T and Guelph had compulsory retirement provisions.  The faculty unions applied for a court order in 1986 that compulsory retirement violates the equality provisions of the Charter.

1.  Does the Charter apply to universities?  No:  insufficient government control.
2,  Is the provision in Ont Human Rts Code that excludes those over 65 from employment discrimination a Charter violation?  Yes - a violation of s. 15.

Can this violation be saved under S. 1?
Application of Oakes test:
Part I:  Objectives of excluding those over 65:  a) balance between right to work, and need for a pension, and b) affirmative action for younger workers.  These objectives are pressing and substantial.  Part I test passed.

Part II:
a) rational connection:  passed.  Evidence was that pension schemes could not be properly developed without compulsory retirement.
b) minimal impairment of rights:  yes
c) overall banance:  yes

Wilson dissented.  She said that Universities are covered by the Charter, and that compulsory ret doesn’t meet the Oakes test.  L’Heureux-Dube also dissented.  She wrote that universities are not covered by the Charter, but they must comply with the Human Rights Code, which itself must conform with the Charter.  She agreed with Wilson that the exemption of those over 65 doesn’t pass Oakes test.