Today, we're discussing three early charter cases:
Big M Drug Mart (April, 1985)
Bill of Rights precedents
Purpose of Charter
Does Charter apply to businesses?
Operation Dismantle (May, 1985)
Does Charter apply to cabinet decisions?
Oakes (Feb., 1986)
application of Section 1 (limitations clause)
Big M Drug Mart
Impugned: Lord’s Day Act
Calgary drug store challenges Act as violation of S. 2
Does Charter apply to corporations?
“everyone” in S. 2 (fund freedoms) and “anyone” in S. 24 (remedies) includes legal persons
Bill of Rights precedents
Does Robertson & Rosetanni apply?
Dickson: Charter doesn’t simply “recognize and declare” existing rights. Applies to present & future legislation
Do we look only at effect of impugned legislation, as in Robertson & Rosetanni?
No: purpose equally important. Purpose is clearly to promote particular religious observances (from 1677)
Purpose of Charter: tolerance, freedom, equality.
Freedom is founded on “respect for the inherent dignity and the inviolable rights of the human person.”
Court will take a “Purposive” approach to interpretation of Charter
Freedom of Religion
What is purpose of freedom of religion?
History: forcing religious belief does not work.
Christians realized that their religion demands tolerance. Everyone given a conscience; to compel belief dishonours God.
Religious minorities need protection from tyranny of the majority.
Preamble to Charter: “Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Perhaps Dickson
was hinting that the reference to "God" in the preamble means that we must respect everyone's freedom of conscience.
The Lor'd Day Act violates s. 2 of the Charter. Can it be saved by s. 1?
-need a day of rest conforming with needs of majority.
Dickson: Don't agree; Charter is to protect religious minorities
-society needs a weekly day of rest so families can spend time together.
Dickson: good argument, but that’s a provincial responsibility. LDA had been a fed law under crim power. Now only provinces can regulate.
1983: peace groups challenged cabinet decision to test U.S. cruise missiles; violates s. 7.
1985: SCC decision
Argument of peace groups: testing will destabilize status quo, making Canada vulnerable to attack from Soviet Union
-Are cabinet decisions subject to the Charter, even when under the prerogative power? Yes: S. 32 includes “government,” broadly defined
-Are politicial issues justiciable?
Court: This is a U.S. approach. No "political questions" doctrine to be developed in Canada. Any legal issue is justiciable.
-Should the case proceed to trial?
Dickson: no, because the arguments of the peace activists are speculation; no proof that s. 7 would be violated. No legal issue, no standing.
Wilson: need proof that the tests would violate s. 7 rights of specific individuals
-Use of Charter for publicity purposes. Lawyers for Operation Dismantle gained a big victory by getting a declaration that the Charter applies to cabinet decisions. But the rank and file actually believed they could win the case. I'm sure the lawyers didn't think that; the case got the group a lot of publicity. Did this strategy backfire with regard to the rank and file?
Impugned: reverse onus clause in fed Narcotic Control Act.
If found guilty of possession of a narcotic, presumed guilty of trafficking unless accused can prove otherwise. Claim of Oakes: violates s. 11(d) presumption of innocence.
Oakes: found guilty of possession of 8 one-gram bials of hash oil in 1981. Challenged trafficking charge.
Does reverse onus violate s. 11(d)? Yes. Is the reverse onus clause saved by S. 1?
Dickson: In a free & democratic society, the gov’t objective
must be of sufficient importance to justify limiting a right.
What is objective of reverse onus clause?
Dickson: Curb drug trafficking. This is of sufficient importance. The first part of the test for S. 1 is passed.
Going on to Part II of the test, Is there a rational connection
between the gov't objective, and the means used?
Dickson: no. Possession of a small amount of a narcotic does not necessarily mean trafficking is involved. This isn’t a rational way to get at the traffickers.
Because the impugned legislation has failed the first prong of the second part of the test, it’s not necessary to consider the other 2 prongs of Part II.
Summary of "Oakes Test for interpretation of Section 1:
1. Is the government objective in limiting the right of substantial importance to society?
2. If (1) is answered "yes,", then the limit to the right must
be proportional to the government objective in three ways:
a) there must be a rational connection between the government objective, and the means used in the impugned legislation to reach the objective.
b) the right that is limited should be impaired as little as necessary to meet the government objective.
c) there must be an overall balance between the harm done by limiting the right, and the good achieved by meeting the legislative objective. The cure can’t be worse than the disease.