POLS 3605 3.0, Winter, 2005
Review Notes for Mid-term Exam, 2005
• Welcome to the course, Keele and
• This is a “technology enhanced
• You MUST use WebCt and
participate in discussion groups
• You MUST attend 70% of the
lectures, even though the lectures are videostreamed
• Course outline
• Assignments & grading
• Mock Trials
• Group work
• If you’re thinking about
withdrawing from the course, you need an advising appointment with me
• If you haven’t taken Public Law
I, the first 4 lectures will be posted on the WebCt site for this
course. Watch the lectures to get the background you need for
this course. (These won't be necessary for the mid-term exam, but
the subjects are useful background to understand terms used in Public
• Ronald Dworkin: " …individuals
have a right to equal concern and respect in the design and
administration of the institutions that govern them…. They
possess [this right] not by virtue of birth or characteristic or merit
or excellence but simply as human beings with the capacity to make
plans and give justice.”
• Sniderman, Russell, Fletcher,
Tetlock: commitment to tolerance.
• My approach: every human
being deserves -- and owes to others -- respect and fair treatment.
• C.B. Macpherson: rights
include opportunities to exercise those rights (positive rights).
• Difference between human rights
and civil liberties:
right”: derived either from positive law, or natural law.
(eg. legal rights in Charter)
liberty”: ability to act without constraints (eg. the
“fundamental freedoms” in Charter)
Rights in liberal democracies
• Basic principles of human rights
and civil liberties:
• 1. optimal freedom
J.S. Mill: “harm” principle for limits
2. procedural fairness when there are limits
3. equality of application of rights and freedoms
• Reasonable Limits to Rights:
– some relevant
differences in ability (eg. qualifications for driver's license, or to
become a doctor, or age restriction for voting)
honesty (eg. limits to freedom of speech: law suits for
– need to
preserve public order (police searches, anti-terrorism)
– to deal with
conflicts between one right and another
community-wide restrictions on moral behaviour (eg pornography)
Rights-Consciousness in Canada
• Political theory of liberalism
Renaissance of 15th century
Revolution (England: 1688)
Locke: Second Treatise on Gov’t 1690
• rule of
law “one rule for the Rich and Poor, for the Favourite at Court
and the Country Man at Plough”
principles of liberalism: freedom & equality
• common law
protections for individual freedom:
strict attention to rule of law: Entick v. Carrington 1765:
cabinet minister sued for breach of privacy
crown must prove case beyond reasonable doubt
free confessions; can’t be forced to self-incriminate
prerogative writs (habeas corpus)
• Development of democratic values
– growth of
• U.S. Bill of Rights
(declaration of independence): “…all men are created equal [and]
endowed by their Creator with certain unalienable rights [including]
Life, Liberty and the pursuit of Happiness.” (1776)
– To get 1787
(2nd) constitution ratified, state leaders insisted on a Bill of
Rights; added in 1789 as first 10 amendments to 1787 constitution:
• freedom of
speech, press, assembly & religion
rights: no unreasonable search or seizure, right not to testify
against self, can’t be punished twice for same offence, due process
safeguards, no cruel or unusual punishment
legal rights: speedy trial, jury trial for serious cases,
reasonable bail, to bear arms, and to refuse accommodation to soldiers
• Canada’s bilingual and
– demands in
1864 for guarantees of minority language and minority religious
education rights prior to Confederation in 1867
– “small bill
of rights”: (Hogg)
• S. 133 of BNA
Act: Eng or Fr in Parl, Quebec leg., and Can & fed courts;
similar guarantees in Manitoba in 1870, & AB and Sask in 1905
• S. 93:
safeguards existing denominational school rights
• Legislative Supremacy
– Preamble to
BNA Act: Canada’s constitution “similar in principle” to that of
supremacy one aspect of U.K. constitution: seems to contradict
idea of a constitutional bill of rights
Dicey: Introduction to the Study of the Law of the Constitution
• human rights
protected by common law
constitution is too rigid; trust legislature & common law judges
Liberty Cases prior to Can Bill of Rts
• Early B.C.: plenty of disc
leg against Orientals. JCPC record mixed
JCPC stuck down law restricting employment of Orientals as ultra vires
JCPC upheld denial of vote to Orientals - leg sup
• Private suits by Blacks against
private disc: some succeeded, most didn’t because cts emphasized
private right to contract
• Sask: disc leg ag
Orientals: upheld by SCC, 1914
• “Persons” case: 1930
• Alberta Press Case (1938)
impugned: package of Social Credit legislation:
unanimously struck down
doctrine”: because Can. const is “similar in principle” to that
of U.K., courts can strike down legislation violating trad. human
rights. Also, Canada is a democracy: H of C is
representative. “Free public discussion … is the breath of life
for parliamentary institutions”
• Treatment of Japanese Canadians
during W W II: courts did not intervene
• “Gouzenko affair” in 1945:
secret trials of 26 under War Measures Act without usual procedural
protections. Led to Can Civ Liberties Association
• Duplessis era
1953: SCC struck down Que City bylaw about littering, but which
was aimed at Jehovah’s Witnesses
– Switzman v.
Elbling, 1957: SCC struck down Padlock Law because it trenched on
Parl’s crim law jurisdiction
– Roncarelli v.
Duplessis, 1959: Roncarelli posted bail for JWs, and Duplessis
cancelled his restaurant liquor license. Roncarelli sued
Duplessis for violation of rule of law (Frank Scott represented
Roncarelli), and won.
Bill of Rights
• Spearheaded by PM John
Diefenbaker, and enacted in 1960
• S. 1: rights to life,
liberty, sec of person, enjoyment of property, equality before law,
freedom of religion, speech, assembly, association and press have
existed and continue to exist without discrimination by reason of race,
national origin, colour, religion or sex
• S. 2: lists traditional
common law legal rights: habeas corpus, no arbitrary detention or
imprisonment, no cruel or unusual punishment, no arrest without lawful
reason, right to retain lawyer without delay, right not to be forced to
incriminate self, innocent until proven guilty, ind and imp tribunal,
reasonable bail, interpreter. Right to a fair hearing in accord
with fundamental justice to determine rights and obligations.
• “notwithstanding clause”
• Robertson & Rosetanni v. the
impugned: fed. Lord’s Day Act
– Ritchie (for
majority): Freedom of religion “has existed;” therefore no
– Fr of Rel
means an absence of disabilities, but govt’s can promote religious
– Although Act
as a religious purpose, the effect is purely secular
dissented: both purpose & effect of Act compel, under penal
sanction, observance of a particular religious holy day
– Courts can
strike down laws under Bill of Rights; otherwise the “notwithstanding”
clause would not be necessary
• Drybones (1970)
impugned: section of Indian Act that made it an offence for
an Indian to be intoxicated off a reservation. No reservations in
claimed equality before the law violated
– Ritchie (for
majority): Where it is “an offence…on account of race…to do
something which all Canadians who are not members of that race may do…”
there is a violation of equality.
adopts Cartwright’s reasoning from Rosetanni that notwithstanding
clause means Bill of Rights is more than a rule of construction.
dissented. Said he’d changed his mind since Rosetanni. It
would be dangerous for the courts to usurp legislature’s role by
deciding what statutes violate Bill of Rights.
Canadian Bill of Rights (3)
• Lavell & Bedard (1974)
impugned: part of Indian Act that states that if an Indian
man marries a non-Indian, he retains status and his children inherit
it, but if an Indian woman marries a non-Indian, she forfeits her
status, as do her children.
– Ritchie for
majority (5-4): equality before the law, according to Dicey,
means equality in the administration of the law.
– If all Indian
women are treated equally, there’s no necessary discrimination.
(Indian women aren’t compelled by law to marry non-Indians).
• Bliss (1979):
impugned: part of Un Ins Act that stipulated longer
qualifying period for work absence due to pregnancy. SCC:
no discrimination, as the provision applies to everyone.
• Oil, Chem and Atomic Workers
case (1963): SCC says it’s OK for BC gov’t to prohibit
political contributions if received from check-off.
• 1969: SCC upholds Alberta
discriminatory legislation against Hutterites
• Dupond (1978): SCC upholds
a Montreal by-law that allowed Council to ban all demonstrations for
Demonstrations are not “speech in action,” therefore no violation of
freedom of speech
dismissed the Duff Doctrine
• SCC’s record under Bill of
Rights led to support for idea of a constitutional Charter of Rights
to the Charter
• 1968: Trudeau became
PM. He wanted:
– patriation of
Charter of Rights
better-protected language and mobility rights
• 1970: Molgate-MacGuigan
Committee found strong support for a const. Charter
• 1971: Victoria
– agreement for
Ch and pat.
– opposed in
the end by Quebec and Alberta
• 1976: PQ elected in Quebec
• 1980: Referendum
promised renewed federalism
– reference to
3 Prov Cts of Appeal; appeal to SCC
– SCC Ruling:
• legal, but
– Nov. 1981
November 1981 compromise
• Patriation of constitution with
the amending formula favoured by most of the premiers (the 7-50
formula), but which Trudeau had opposed
• acceptance of a constitutional
Charter of Rights which would contain a “notwithstanding” (non
• Trudeau insisted that the
notwithstanding clause not cover language rights, minority language
education rights, or mobility rights; notwithstanding clause would have
a 5-year limit
Charter of Rights
became law April, 1982
• 1. Limitations clause
• 2. Fundamental freedoms:
belief, opinion & expression
– press and
• 3-5: Democratic rights:
right to vote and run for office
– 5 yr limit to
life of H of C or prov. Assembly except during war etc. if supported by
– sitting of
Parliament, and prov. Legislatures, at least every 12 months
Mobility and Legal Rights
• 6. Mobility rights
– 1. to
enter, remain, leave
– 2. to
move within Can. and pursue livelihood, subject to laws that don’t
discriminate and residency provisions, and restrictions in
provinces of high unemployment
• 7-14 Legal rights:
eveything in Bill plus
– freedom from
unreasonable search or seizure (s. 8)
– trial within
– jury trial if
liable to 5 years imprisonment
– no double
punishment if law varied
Equality and Language
• 15 Equality before and
under the law
discrimination based on race, national or ethnic origin, colour,
religion, sex, age, mental or physical disability
action programmes OK
• 16-22: Language
S. 133 of CA, 1867, which is still in effect
– applies to
Canada (fed) and New Brunswick only, though other prov’s can opt in
– Eng & Fr
statutes, Hansard in 2 langs
– Eng or Fr can
be used in courts
– right to
receive services or communicate in English or French with gov’t
Minority Lang Education, remedies
• 23: Minority lang ed
whose first lang is Eng or Fr, or who attended prim school in Eng or
Fr, have right to educate children in that lang.
– applies where
• 24: remedies
– (1) “...such
remedy as the court considers appropriate”
– (2) evidence
may be excluded if its collection violated a right, if admitting it
“would bring the administration of justice into disrepute”
• 25: aboriginal and treaty
rights not reduced by charter, including rights under Royal
Proclamation of 1763, and land claims agreements
• 26: other existing rights
not reduced by Charter
• 27: multicultural heritage
of Canadians to be kept in mind when interpreting the charter
• 28: equal guarantee to
males and females (this section isn’t covered by the “notwithstanding”
denominational school rights in CA, 1867 not reduced
Territories included, now and later
Charter does not extend legislative powers; it is a limit
Application to Parl, legislatures, gov’ts (& 3 year delay for s. 15)
– 33: a
notwithstanding clause can be inserted into legis. re ss. 2 or 7-15; 5
year limit; can be renewed
– 34: ss.
1-34 of CA, 1982 cited as the Charter of Rights and Freedoms
Doucet-Boudreau v. Nova Scotia, 2003:
example of application of
Ss. 23 & 24
• Impugned provision: order
of a trial judge to force Nova Scotia to provide secondary schools in
the French language, and report on its progress.
• Nova Scotia CA: S. 24
doesn’t give judges the power to supervise implementation
• SCC: 5-4 decision:
upheld the authority of the trial judge under S. 24(2)
• Iacobucci & Arbour for
majority of 5:
– if delay is
tolerated, govt’s can avoid Charter obligations
gov’t to report on progress is a “creative blending of remedies,”and
leaves gov’t with discretion as to how to build & provide schools,
and their nature
• Lebel & Deschamps for
minority of 4:
separation of powers
order too vague
shouldn’t meddle with administration
– a deadline
for construction, and threat of a contempt order, is enough
Charter and Its Critics
• The Charter undermines
legislative supremacy & therefore democracy
elected legislators are closer to the needs of the poor and
oppressed. Judges are business-oriented. No Charter
decision has/will benefit the disadvantaged
Morton-Knopff: Judges may be “captured” by special
interest groups, mostly on the left. This subverts democracy.
erodes participatory democracy. Human rights can only be
protected by the vigilance of citizens
• Cost of litigation compared to
the political process
case: NCC spent $500,000; unions $400,000 +
case: why didn’t artists use political process to change Ont
censorship law? Didn’t know how.
– But think of
cost of lobbyists
litigation focuses attention on cases that happen to get to court, not
necessarily most imp issues for society (Dean Monahan, Osgoode Hall Law
• Cts should
interpret Ch to promote democracy
• Courts are inappropriate for
making policy on human rights
– Stare decisis
is backwards looking, compared with the possibility of forward-looking
policy formation processes in public service/legislature
Appropriate procedure for determination of refugee cases
case (changes to parental leave policy)
• gov’t lawyers
argue for a narrow interpretation of Charter, whether or not this is
• courts rely
on arguments from counsel. Sometimes, no section 1 arguments
• Do judges get
a complete analysis of the issues?
• older than
disproportionately married with children
• New Canadians
and Aboriginals under-represented on bench
• most from
business or professional family
• tend to be
process for Prov Courts and prov. Superior courts improving.
Elevation procedure, and SCC secretive
problems with lack of representation in legal profession
• Why do we tend to trust judges
more than elected politicians?
• Was the Charter worth the
upheaval it took to get it?
– Will revisit
this question last week of class
Mandel & the Legalization of Politics
• Judges are supposed to decide
based on principle, and avoid policy.
– Hard to
– Judges tend
to be conservative on social and economic questions
– Judges tend
to be “active” to support interests of business and capital, and
“restrained” in relation to advancing the cause of the disadvantaged
precedents tend to support the advantaged
• Our legal system assumes all
litigants are equal in ability to defend positions.
– This is why
U.S. courts are reluctant to find affirmative action programs
• Charter is supposed to defend
the socially weak against majority rule.
– But the
socially strong have more to gain
– Elected govts
can act to advance the cause of the disadvantaged. Charter allows
them to avoid some issues.
& Morton: Charter politics
• Agree with Mandel that Charter
allows legislatures to pass difficult issues to courts
• Charter is a “two edged sword”
-- can slash to the right or the left, depending on the judges
• Do we want judges to be the
“official public philosopher?”
• Should judges be
“non-interpretivists” (will of framers -- a straight jacket) or
“non-interpretivists” (creative, but perhaps against
• The Charter Revolution (1999):
– groups with
axes to grind have used Charter to subvert democratic process
interest groups (eg. Canadian Civil Liberties Assoc, gay and lesbian
organizations, the gun lobby, NCC)
representing “Charter” Canadians (the handicapped, seniors, new
• Christopher Manfredi
– s. 33 makes
Charter more democratic
– s. 33 became
unpopular because of signs case
• Alan Cairns
– Charter has
empowered “Charter Canadians”
• Peter Russell:
– Charter is
here to stay, so how can we make sure it works well?
• My view:
principle behind democracy is mutual respect. Mutual respect
• respect for
• rule of law
• respect for
• respect for
– What is
important is how well courts perform discretionary functions, not
whether they have discretion. Do judicial decisions promote
Big M Drug
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
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.”
“Purposive” approach to application 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 by God; to compel belief therefore
rel 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.”
Act therefore violates s. 2. Can it be saved by s. 1?
need a day of rest conforming with needs of majority.
Dickson: No; 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 was a federal law under criminal 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: 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,”
Are politicial issues justiciable?
This is a U.S. approach
Any legal issue is justiciable in Canada
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
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 vials of hash oil
in 1981. Challenged trafficking charge.
Does reverse onus violate s. 11(d)? Yes. Saved by S. 1?
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
Rational connection between objective, and 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.
Other two prongs of Part II of the Oakes test:
the right that is limited should be impaired as little as necessary to
meet the government objective
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.
Summary of Oakes Test for
appliction of Section I of Charter:
I. Sufficient Importance Test: The
objective of the impugned legislation must be of sufficient importance
to justify overriding a right. (In order to appply this test, the
judges first need to state what they think is the objective of the
II. The three-pronged proportionality test:
a) there must be a rational
connection between the objective of the legislation that infringes a
right, and the means used.
b) rights must be limited as
little as necessary to achieve the objective of the legislation.
c) overall, the good accomplished
by overriding a right must outweight the harm done by overriding rights.
Edwards Books and Art (1986)
Prov. Sunday closing legis co-existed with Lord’s Day Act (double
Ontario Retail Business Holidays Act
challenged by Edwards Books & Art, & 3 others
most retail business must close Sundays. However, those with less
than 5000 sq ft and less than 8 employees can stay open, if closed on
Objective: create a weekly holiday generally available
no religious purpose, so no direct violation of S. 2
there’s an indirect and unintentional violation, because legislation
places a greater burden on non-Sunday observers
Section 1 Analysis:
Part I of Oakes Test: is objective substantially important? Yes.
The opportunity for families to spend time together is “a pressing and
Second part of Oakes test:
a) rational connection: if objective so important, why are there
so many exceptions (eg. factories non-retail businesses)? 1970
Ont Law Ref Comm Rep: unions, need for entertainment on
Sundays. Rat conn test is passed.
b) minimal interference of rights:
Alternatives: 1. Anyone can refuse work on Sundays.
2. Those employers with religious convictions can choose closure
day. 3. Remove size restriction for Saturday
observers. All alternatives inadequate, so 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
c) overall balance: majority agree test is passed
Impugned: a court order made under common law that prohibited
secondary picketing until legal issues determined
Does Charter extend to common law? If so, does Charter cover
common law in private law area? (McIntyre wrote dec)
Common law: yes. (s. 52):
any law inconsistent with const is of no force or effect
common law in private law area?
S. 32: what does “government” mean? Charter applies to all
enacted laws, whether private or public, but not to contracts made
according to private law.
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 are
covered. Not intent of framers of Charter.
Dolphin Delivery (2)
But Cts will apply same principles to private law decisions anyway
McIntyre: If secondary picketing was governed by legislation,
would prohibiting it violate the Charter? First, ban on secondary
picketing does violate S. 2 (Beetz dissenting). However, the
Oakes test is passed, because Union members can express themselves
elsewhere (minimal impairment).
Wilson wrote separate concurring decision, applying the Oakes test in
BCGEU case (1988)
prov. govt employees’ union went on strike in 1983, and picketed
Vancouver Courthouse. CJ issued an ex parte injunction (not under
private law) prohibiting picketing. Union appealed, but lost,
given the relevant parts of the Dolphin Delivery precedent.
v. University of Guelph (1987)
York and other universities had compulsory retirement provisions.
Unions applied for a ct order in 1986 that comp retirement violated
Does the Charter apply to universities? No: insufficient
Is the provision in Ont Hum Rts Code that excludes those over 65 from
employment discrimination a Charter violation? Yes - s. 15
a) Objectives: balance between rt to work and need for a
pension, and affirmative action for younger workers. They are
pressing and substantial.
rational connection: yes
minimal impairment: yes
overall banance: yes
Wilson dissented. Universities covered. Com ret doesn’t
meet Oakes test. L’Heureux-Dube: universities not covered,
but HRC exemption doesn’t pass Oakes
Northcrest v. Amselem, .
Amselem & others set up succahs on balconies of co-owned building
(like a condominium) during Jewish religious festival of Succot.
Building managers & other co-owners said this violated the rules re
balconies, and were granted an injunction to prevent succahs on
balconies. Amselem & others appealed to Que CA & SCC
under Quebec Charter, Can Charter and Quebec civil code.
Majority (5) led by Iacobucci: Freedom of religion means managers
must accommodate. No hardships in this case. Courts
shouldn’t judge what religions require. (Similarly, you have a
right not to write an exam on a religious holy day that is important to
Minority (4) led by Bastarache: proper for courts to consider
evidence about what religions require. Other legitimate
alternatives were available. Quebec Charter & civil code
protect right to enjoyment of property, and personal security, both of
which Amselem and others violated by setting up succahs on balconies.
Secession Reference (1998)
• Ref Q a result of Chretien-Dion “Plan
B” strategy for combatting separatism
– 1. Under Can
Const, can Québec secede unilaterally, without a constitutional
Under Int law, can Québec secede unilaterally?
– 3. If
conflict between (1) and (2), which takes precedence?
• Legal answers clear in advance.
Why, then, did SCC write such a lengthy judgment?
• 1. Can Québec secede
unilaterally under constitution?
– Arguments in
favour based on democracy.
– What is
– Our democracy
is based on shared values. Dem is self-governance, respect for
human dignity, protection of minorities. Unilateral secession puts
these values at risk. Thus, there’s a duty to negotiate if a
clear majority votes in favour of a clear question. Clarity must
be defined by the political process, not the courts.
– Was SCC too
activist, or not activist enough re “clear question” and “clear
Québec Secession Reference (2)
• 2. Does international law give
Québec the right to secede unilaterally?
– Amicus for
Quebec: right to self-determination belongs to all “peoples.”
Québeckers constitute a “people”?
not necessary to decide, because even if yes, the right only exists
where a “people” is mistreated.
• right to only arises under
international law where “a people” is governed as part of a colonial
empire, “is subject to alien subjugation, domination or exploitation;
and possibly where ‘a people’ is denied any meaningful exercise of its
right to self- determination within the state of which it forms a part.”
Québec Secession Reference (3)
• Spring of 2000: Bill
C-20: “An Act to give effect to the requirement for clarity….”
– Within 30
days of a prov legislature tabling a referendum question, H. of C. must
declare whether question is “clear.”
– If question
considered “clear,” and a majority votes in favour, H of C must
determine whether majority is “clear.” Consider:
– Size of
– Views of
– View of Senate
• Keegstra was a high school teacher in
Eckville, AB. Taught stuedents anti-Semitic theories.
• charged with violating s. 319(2) of
the Criminal Code -- “wilfully promoting hatred against an identifiable
group by communicating anti-semitic statements to his students.”
• convicted at trial
• AB Ct of Appeal: s. 319(2)
violates S. 2 of Charter
• SCC: The violation of S. 2 can
be justified under s. 1 of the Charter.
• 4-3 decision: Majority is CJ
Dickson, Wilson, L'Heureux-Dubé and Gonthier; minority is La
Forest, Sopinka and McLachlin JJ.
• Majority decision:
– Section 2(b)
should be given a “large and liberal” interpretation, and so it covers
even hate speech.
– Oakes test:
Substantial importance test: gov’t objective: prevent harm
caused by hate propaganda, is of sufficient importance
• Part II: Proportionality test
– a) rational
connection: yes. Prohibiting hate propaganda prevents
harm resulting from it. (historical examples)
– b) fr of exp
limited as little as necessary? Yes: only “most severe”
forms of hatred covered. Private communications not
covered. There’s a defence of “truth,” if accused can prove
on bal of probabilities. Promotion must be willful, so mens rea
– c) good
outweighs harm. Hate propaganda does not contribute to
self-development, quest for truth, participative democracy.
communications offensive, but not threats. Not violent, didn’t
advocate violence. Difficult to draw line between hate speech,
and valid criticism. Speech that advocates changing the basic
conceptions about our society must be protected.
• Oakes Test:
objective is of sufficient importance.
– a) rational
connection: not necessarily. Hate might just go
underground, or be disguised to fit the law. Prosecution might
create sympathy. Publicizing the case might have the opposite of
effect intended. Valuable speech might be inadvertently supressed.
– b) S. 319(2)
is overbroad. Dn of “hate” is too subjective. True
statements about a group might result in hate.
– c) Harm
outweights good. Might have a “chilling effect.” It
prevents free and open debate. No proof that S.319(2) promotes
social harmony & indiv dignity.
• Reverse onus issue:
– can’t be
convicted if you prove statements are true. Maj: violates
presumption of innocence, but passes Oakes test for same reason as the
rest of 319(2) does.
• Charged with violating S. 181 of Crim
Code: publishing “a statement, tale or news that he knows is
false and causes or is likely to cause injury or mischief to a public
interest.” Zundel published pamphlet, “Did Six Million Really
• convicted at trial; upheld by Ont
CA. Zundel: S. 181 violates S. s(b) of Charter:
freedom of expression.
• SCC: 4-3 upholding Zundel’s
• Majority: La Forest,
L’Heureux-Dube, Sopinka, McLachlin. Dissenters: Gonthier,
Cory, Iacobucci. (Dickson, Wilson gone).
• Majority: S. 181 infringes
2(b). All expression covered, except violent. Purpose: free
expression to promote truth, pol & soc participation, and
self-fulfillment. Includes beliefs majority of Canadians find
wrong, false or unpopular. Content irrelevant.
• False statements that someone
believes true can sometimes have value.
• Parliament’s purpose re 181:
copied UK legis to prevent slander against nobles, to preserve
order. Rejects “shifting purpose” argument. Even if
accepted that current purpose is to prevent harm, that’s not specific
enough to pass Part I of Oakes Test. S. 319(2) is more specific.
• Even if Part I had been passed, S.
181 fails on Part II.
rational connection: no rational connection between promoting
social harmony, and means used. S. 181 could cover nearly any
controversial statement. It could have a chilling effect,
producing the opposite of the result intended.
– b) certainly
does not restrict rights as little as necessary to achieve objective
– c) clearly S.
181 does more harm than good.
• S. 181 violates S 2(b) of
charter. However, it is saved by S. 1.
– S. 181 is
vague, but a judge’s job is to define vague phrases in law, eg. “public
interest.” “A ‘public interest’ likely to be harmed as a result
of contravention of s. 181 is the public interest in a free and
democratic society that is subject to the rule of law.” A
democracy promotes free public discussion, equality, liberty and human
– S. 181 is
clear enough to provide a substantially important objective (prevent
harm [injury], promote tolerance) to pass Part I of Oakes.
Original medieval purpose has changed, as Parliament has amended the
legislation over time.
– Part II Oakes
test is also passed.
– a) rational
connection: rational connection between suppressing deliberate lies
that could result in unrest, and preventing harm. Used rarely
because hard to prove deliberate lies, and that they could result in
– b) not
overbroad: courts can tell difference between opinion and fact.
– c) good
outweighs harm. Spreading willful lies does not further public
Impugned: s. 163 of Crim
Code: prohibits sale of obscene materials, i.e. where a dominant
characteristic is the undue exploitation of sex, or sex and crime,
horror, cruelty and violence.
• Butler: convicted of selling
& renting hard core video & magazines in Winnipeg.
Butler's Argument: s. 163 violates s. 2(b) of Charter.
• Trial judge: obscenity
restricted to materials that depict sex & cruelty, lack of consent,
or dehumanization. Convicted on 8 counts only (he'd been charged
with over one hundred offences)
• Court of Appeal: All of S. 163
is a reasonable limit. Convict on all counts, not just 8.
• SCC (unanimous 9-judge
decision): clarified meaning of obscenity. S. 163
infringed 2(b), but SCC’s dn of obscenity can pass the Oakes
test. Butler to be tried again.
• Sopinka (+6): The test for
obscenity: Is exploitation of sex “undue” according to “community
standards test”? This is not what Can’s would tolerate for
selves, but what they’d tolerate others being exposed to re harm to
• Consent is important, but not
• Re works of art: “internal
necessities” test: is the material required for serious treatment
of a theme?
• Judges apply the “reasonable person”
test: what would a “reasonable person,” informed of the relevant
• sex & violence: nearly
always undue exploitation
• sex that’s dehumanizing: undue if
risk of harm substantial
• sex that’s not violent or degrading
is tolerated unless it involves children
• “internal necessities” test: judge
must determine whether material is really necessary, or the work is an
excuse for exploitation. If in doubt, err on side of freedom of
• Oakes test passed:
• I: Objective of preventing harm
is pressing & substantial
• II: a) rational conn exists
between supressing obscene materials and preventing harm.
Community standards test is sufficiently clear.
• b) rights
minimally impaired. Only potentially harmful material caught, and
there’s an internal necessities test
• c) good
& Gonthier): generally agree with Sopinka, but think that
sometimes materials that don’t combine sex and violence, or sex
dehumanizing, can be obscene
because there’s a community consensus that the materials may result in
harm by contributing to the “deformation of sexuality.”
• late 1990s, John Robin Sharpe of
Vancouver was charged with two counts of possession of pornographic
materials under the part of S. 163 of CC prohibiting possession of
child pornography, and with possession of these materials for the
purposes of distribution.
• Sharpe argued the legislation
intended to protect children was over-broad, unnecessarily interfering
with his privacy and his freedom of expression. Some of the
stories/drawings came from his own imagination. Won at trial and
CA, crown appealed to SCC, heard in 2000.
• SCC: 4-3 legislation valid, but
majority “read in” two restrictions:
– the leg would
not be construed so as to apply to "(1) self-created expressive
material: i.e., any written material or visual rep’tion created by the
acc’d alone, and held by the acc’d alone, exclusively for his/her
own personal use; and (2) private recordings of lawful sexual
activity ... created by or depicting the accused, provided it does not
depict unlawful sexual activity and is held by the accused exclusively
for private use." (eg. of 17-year-olds legally married)
• Impugned: the section of the
federal Customs Tariff Act that prohibits importation of obscene
materials, and creates a “reverse onus” on importer to prove that
materials are not obscene.
• Little Sisters bookstore:
imported gay/lesbian erotica, and had materials confiscated by customs
officials. Bookstore challenged the customs legislation as a
violation of S. 2(b) of Charter: freedom of expression.
• SCC: 6-3: reverse onus
provision is unconstitutional. However, the prohibition against
importing obscene materials is constitutional.
• The CT Act is a prima facie violation
of the Charter, but passes the Oakes test.
• Objective of legislation:
prevent Canada from being inundated by obscene material from abroad
Substantially important: yes
proportionality: a) customs procedures rationally connected to
objective. b) there’s minimal impairment if Butler test applied,
and c) there’s an overall balance
• Butler definition of obscenity must
be applied by customs officers. The wording of the Act allows for
• Customs officials delayed
unnecessarily (30 days reasonable), and were “high-handed” in applying
a stricter standard to homosexual than to heterosexual materials.
Actions of public servants ruled unconstitutional, not the law.
• Dissenters (Iacobucci, Arbour &
– The Act is
not minimally intrusive. The Act contains neither procedural
safeguards, nor a guarantee that customs officers understand the Butler
appeals to a superior court rather than a specialized tribunal is
“completely impractical” given the “sheer number of contested
– The defects
of the impugned legislation outweigh its benefits. Some have been
denied “important literature” (how to prevent AIDS), and some artists
have their work labeled as “obscene” when it’s not obscene according to
the Butler test.
• 1977: Bill 101, Charter of the
English on most commercial signs to encourage immigrants to assimilate
with the francophone culture.
• Quebec Charter of Human Rights (1975)
freedom of expression
– Contains a
limitations clause like s. 1 of Charter
• PQ: Blanket override of
existing legislation enacted in 1982
• 1984: Ford & Brown claimed
right to post bilingual outdoor signs
• 1978: Devine & Singer
displayed signs in English only & convicted under B 101
1988 SCC decision: Ford
• Is blanket override under s33
– part of 101
subject to Can Charter; override expired. 1984 amendment:
subject only to Quebec Charter as 5-year override still valid.
• Freedom of expression
– Does it apply
to ideas only, or language of expression too?
• Does 101 violate Fr of Exp in
Canadian & Quebec Charters? Yes
• Can the violation be justified by s.1
importance of preserving Fr culture: yes
– Limit rights
as little as necessary: no. Studies conclude bilingual
signs work if French predominates.
Devine & After
Ford, Devine must use bilingual signs
– 101 violates
fed criminal law power? No: 92(13)
– Guarantee of
equality in Quebec Charter of Rights violated? Yes, but bilingual
requirements are a reasonable limit
• Bourassa could have amended 101 to
allow for bilingual signs, French predominating
– instead, used
S. 33 to re-enact French-only signs law
– over next 5
years, debate in Quebec concluded SCC was right. Even the PQ
government did not re-enact the override. This is how S. 33 is
supposed to work.
v. AG Can (1995)
• Impugned: fed Tobacco Products
Control Act, which regulated tobacco advertising
• Div of powers issue: this is
valid legislation under criminal law power.
• Charter issue: decided 5-4 that
legislation is a violation of 2(b) of Charter.
• All 9 judges agree that the legis
violates 2(b). Disagreed over application of Oakes test.
• Majority: Part I:
objective is to prevent Can’s from being persuaded by tobacco
advertising, and discouraging people who see package from smoking.
Test: These are important
objectives, so Pt I passed.
• Part II:
• a) rational
connection: social science evidence not conclusive that the means
used are likely to work (dissenters disagreed)
• b) minimal
impairment: no. No evidence to show that less obtrusive
measures are just as effective.
• c) harm of
legislation therefore outweighs any good it does.
• Dissenters: (La Forest,
L’Heureux-Dube, Gonthier, Cory): The legislation passes the Oakes
test. The courts must defer to the policy choices of legislatures
• cases like this where leg. is trying
to prevent something extremely harmful. Oakes test must be
applied less strictly. Courts should not second-guess legislative
• Following SCC decision:
Parliament enacted new tobacco advertising legislation that complied
with SCC decision.
• Janet Hiebert, who wrote Charter
Conflicts (2002): Parliament didn’t need to defer. Could
have come back with a more persuasive case, as in the rape shield
• What will be on the mid-term
questions only (eg. Matching, fill-in-the-blanks)
– Know an
overview of history of human rights in Canada, and events leading up to
– Know the main
human rights cases prior to the Charter
• Know the content of the Charter
• Know the Oakes test for Section 1
• For the cases we’ve
studied: (everything including today)
– What is the
– Was it upheld
or struck down? Were there dissents? Why?
– What does the
case teach us about how the Court interprets the Charter?
• S.7: right to life,
liberty, & security of person unless deprived thereof through
• s.8: Unreasonable search
and seizure is forbidden.
• 9. Arbitrary (illegal)
detention or imprisonment is forbidden.
• 10. Everyone who is arrested or
detained has the right:
– a) to
be told why immediately
– b) to
retain a lawyer and be told of this right
habeas corpus (to be freed if illegally detained)
• 11. Persons charged with
offences have the right
– a) to
be informed reasonably quickly of the charge
– b) to a
trial within a reasonable time
– c) not
to be a witness against oneself
– d) to
be presumed innocent until proven guilty before an independent and
– e) to
bail unless unreasonable
– f) to
trial by jury if liable to 5 yrs in jail
• 12. No one can be subjected to
cruel or unusual treatment or punishment.
• 13. Evidence given by a witness
in court can't be used against that witness later on.
• 14. Everyone has a right to an
• Refugee determination process
pre-Singh: those not approved abroad apply at airport;
examined by an officer; transcript sent to Ref St Adv Comm. Rec
to Min. Ap allowed to Ap Bd; can decide with minister’s evidence
and transcript, & no oral hearing
• Both Charter & Bill of
requested additional submissions on Bill.
Impugned: ref det process under Immigration Act
• Wilson: decided under s. 7
of Charter. “Everyone” includes refugee applicants.
– Is it life,
liberty or sec of person at stake here? Yes: security of
– Is this
violation in accord with fundamental justice? No.
justice- nat justice prin of “hear both sides.” App has a rt to
know case against self, and reply to it. Therefore, oral hearing
– S. 1:
crown presented no arguments.
• Beetz: Bill of Rights
– right to “a
fair hearing acc to fundamental justice to det rights and obligations”
– Beetz strikes
down part of Immigration Act; other judges concur
resurrects the Bill of Rights. Beetz also refers to statutory
bills of rights as “constitutional or quasi- constitutional.”
• After Singh:
– Fed gov’t
– backlog in
ref cases: 3 yrs
– some took
advantage of backlog. But some bona fide refugees stopped at border
(Charter does not apply outside)
1987: C-55, “safe 3rd cty”
apprehend ships at sea; penalty for assisting ref applicants who had
not applied abroad
opposition to bills
– CRDD created,
but members mostly patronage appointments then.
• 1982: Therens collided
with tree in Moose Jaw; taken to police station for breathalizer
test. Not told of right to counsel.
– If he’d
refused test, would have been charged with refusing: same penalty
• Police didn’t inform because
operating on Bill of Rts precedents: requesting a breath’zer test
• Le Dain: B of Rts
precedents don’t necessary apply to Ch
• Is preventing contact with
counsel a “reasonable limit?”
– No: not
“prescribed bylaw,” and there’s time in 2 hrs.
• Would admitting the evidence
bring admin of justice into disrepute? (s. 24 - 2)?
– Dissent on
this issue: Le Dain says admit evid here; exclude in
future. McIntyre dissented too: not to admit brings admin
of justice into disrepute.
• Aftermath: 1000s of cases
Veh Act Case (1985)
• 1982: BC gov’t created an
“absolute liability” offence: if you drive with license
suspended, automatic jail term. Mens rea not applicable.
• Issue: does an ab liab
offence violate “fund justice” in s. 7 of Charter?
• BC gov’t sent ref question to BC
CA in 1982; app’d to SCC
• Should “fundamental justice” be
interpreted in a procedural or substantive way?
• Procedural: life, lib and
sec of person can always be limited, if correct procedures followed
• Substantive: in some
cases, even correct procedures cannot justify limiting life, lib or sec
• debates in Parliament:
framers wanted S. 7 interpreted in a procedural way; fear of repeat of
“Lochner era” in U.S., where U.S. judges interpreted “due process” in a
substantive way, and stopped social welfare reforms
• Lamer: legislative history
should be admitted but given “minimal weight,” as no proof that a maj
of MPs and Senators agree with the views of some
• Lamer: combination of an
absolute liability offence, and a jail term, results in a violation of
• S. 1: it’s possible that
the crown could have proved a reasonable limit, but crown did not
present any evidence on this issue.
• Therefore, a “reasonable limit”
has not been established.
• Shortly after Charter came into
effect, Valente went to trial, charged with dangerous driving. He
claimed that the Provincial Court judge he appeared before was not an
“independent” tribunal under Charter S. 11(d). The SCC declared
that Prov. Ct. judges in Ontario are independent, even though the
guarantees of their independence are different from those for Superior
• The decision established that
there are 3 “essential conditions” for jud ind:
– security of
tenure: there must be impartial inquiry before a j can be removed
security: legislated right to a salary
independence: judges must control those aspects of case flow
directly affecting adjudication
• Issue: 11(b) rt. to
trial within a reasonable time
• In this decision, court
developed the “Askov” test for unreasonable delay. Consider
– length of
– was there a
clear waiver of right to trial within reasonable time?
– has the delay
prejudiced accused (hurt the case of the accused)?
• In this case:
– length of
delay is unreasonable
– the cases of
Askov et al have been prejudiced
explanation: Delays in Peel are shocking. Relies on
Carl Baar’s evidence
– no clear
waiver of right
• Baar’s 1993 article commenting
misinterpreted the stats (Can Bar Rev 1993)
• S. 241(b) of criminal
code: prohibits assisted suicide.
• Rodriguez: dying of
Lugerrig’s disease. Wanted declaration that 241(b) violates her
s. 7 right to security of person, & s. 12 rights (cruel treatment)
& s. 15 rights (equality), because it prevents her from arranging
an assisted suicide once life becomes unbearable, and she will be
physically unable to end her life.
• Majority (5) Sopinka
infringement of any rights. Even if s. 15 violated, s. 1 saves.
• Minority: (3 dec’s)
• McLachlin &
L’Heureux-Dubé: s. 241(b) violates fundamental justice (s.
7), & can’t pass the Oakes test for S. 1.
• Lamer: s. 241(b) violates
s. 15, & can’t be saved by s.1.
• Issue: Privacy vs. right
to fair trial
• O’Connor decision (1995): Ct
requires 2-step process. 1. Acc’d to show pte rec’s likely to be
of value in defence. 2. Judge will release records if satisfied
is necessary for full defence
– Extent of
reasonable expectation of privacy allows
– Request for
record not based on bias
dignity or sec of person not unreasonably affected
• Bill C-46 (1997): did new
legislation comply with O’Connor?
• C-46: requires
in writing by accused for private records
– judge holds
in camera hearing re whether to review
– if necessary,
judge reviews the private record; accused doesn’t see it.
– judge decides
whether record or parts should be provided to accused
– judge can
order restrictions on media publication
• Court: advocates dialogue
• C-46 is acceptable balance
between privacy and rt to fair trial
Foundation for Children, Youth and the Law v. Canada (2004)
(also known as the "spanking case")
• Impugned: S. 43 of Crim
Code that justifies “reasonable use of force” by parents and teachers
• Foundation sought declaration
that S. 43 violates ss. 2, 12 & 15 of Charter.
• SCC: 6-3 charter
violations can be upheld under s.1 (Oakes test passed)
• McLaughlin +5: S. 43 adversely
affects security of the person, but fundamental justice is
protected. Force is limited by what is “reasonable under the
“reasonable” is clear enough to pass muster. What’s reasonable is
determined by international treaty obligations, circumstances, expert
evidence, social consensus, and case law.
– spanking is
not “cruel and unusual” (s. 12)
– No violation
of S. 15 (equality). There’s no discrimination. A child’s
dignity not offended. Children need guidance and discipline.
• S. 43
violates s. 15 (equality). Children are marginalized, and their
dignity is offended. However, S. 43 passes the Oakes test for
parents. The objective of preventing criminalization of corporal
punishment is important. Rights are minimally impaired because
the law permits only minimal force. Overall, the good outweighs
the harm. Not so for application to teachers: expectations
are different. None of the Oakes test is passed for teachers.
• S. 43
violates S. 7 of Charter (security of person). Fundamental
justice is violated because the section is so vague. (What is
reasonable force?) Therefore, the limit is not “prescribed by
law,” as required by S. 1 of the Charter.
• There’s a
violation of S. 15 based on age. Children are vulnerable.
The objective of giving parents & teachers reasonable latitude in
nurturing children is important. There’s a rational connection
between this objective and S. 43. However, children’s rights are
not limited as little as necessary, and overall, the current wording of
S. 43 may do more harm than good. Therefore, the Oakes test isn’t
passed for Deschamps.