Canadian Constitutional & Administrative Law

1. Canadian Constitutional & Administrative Law February 19, 2008 Ian Greene

2. Schedule for tonight • Comments on outlines • Questions • Impact of the Charter on legal rights (ss 7-14 – from Greene Ch 5 on secure web page) • Valente • Hunter v. Southam • Singh • Operation Dismantle • Therens • B.C Motor Vehicle Case • Morgentaler, Borowski, Tremblay v. Daigle • Askov

3. Schedule (continued) • Impact of the Charter on democratic rights • Sauvé • Impact of S. 35 of the Constitution Act, 1867 • Calder, Sparrow, Delgammukw • Impact of the Charter on Fundamental Freedoms • Big M, Edwards Books & Art • Quebec Secession Reference

4. S.7: right to life, liberty, & security of person unless deprived thereof through fundamental justice 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 c) 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 impartial judge Legal Rights

5. 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 interpreter. Legal Rights (2)

6. Valente, & Hunter v. Southam Valente (1985) Hunter v. Southam (1984) Combines inv branch searched Edmonton Journal in 1982. S. 8 Charter case. 1984 in SCC: “reasonable” search: authorized by statute, conducted after search warrant issued (unless unrealistic), search warrant issued by an impartial party 1981: Walter Valente charged with dangerous driving; Valente wanted to stay out of jail Valente’s lawyer argued that provincially-appointed judges aren’t “independent” according to S. 11(d) of Charter because they don’t have the protection of Ss 96-100 of CA, 1867 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 • financial security: legislated right to a salary • institutional independence: judges must control those aspects of case flow directly affecting adjudication

7. 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 det with minister’s evidence and transcript, & no oral hearing Both Charter & Bill of Rights issues court requested additional submissions on Bill. Impugned: ref det process under Imm Act Wilson: decided under s. 7 of Charter. “Everyone” covered. Is it life, liberty or sec of person at stake here? Sec of person. Is this violation in accord with fundamental justice? No. Fundamental justice nat justice prin of “hear both sides.” App has a rt to know case against self, and reply to it. Therefore, oral hearing required. S. 1: crown presented no arguments. Singh (1985)

8. Beetz: Bill of Rights still there right to “a fair hearing acc to fundamental justice to det rights and obligations” violated Beetz strikes down part of Immigration Act; other judges concur decision resurrects the Bill of Rights. Beetz also refers to statutory bills of rights as “constitutional or quasi-constitutional.” After Singh: Fed gov’t totally unprepared backlog in ref cases: 3 yrs some took advantage of backlog; some bona fide refugees stopped at border (Charter does not apply outside) May 1987: C-55, “safe 3rd cty” C-84: apprehend ships at sea; penalty for assisting ref applicants who had not applied abroad tremendous opposition to bills CRDD created, but members mostly patronage appointments then Singh (2)

9. 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 Issues Are cabinet decisions subject to the Charter, even when under the prerogative power? Yes: S. 32 includes “government,” broadly defined 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 Operation Dismantle (1985)

10. 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 not “detention.” Le Dain: B of Rts precents 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)? Majority (Estey): yes 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 dropped Therens (1985)

11. 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 of person debates in Parliament: framers wanted S. 7 interpreted in a procedural way; fear of repeat of “Lochner era” in U.S., where U.S. js interpreted “due process” in a substantive way, and stopped social welfare reforms B.C. Motor Veh Act Case (1985)

12. 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 fundamental justice. S. 1: it’s possible that the crown could prove a reasonable limit, but crown did not present any evidence on this issue. Therefore, a “reasonable limit” has not been established. B.C. Motor Veh Act Case (2)

13. Issue: does abortion section of Crim Code (251) violate s. 7? 5 to 2: yes, but 3 different opinions: Dickson, Lamer: 251 violates sec of person; inadequate procedural safeguards. No Dn of “health.” S1 Obj: “life and health” of preg women. Fails rational connection test. Beetz, Estey: Violates sec of person; hosp requirement unnecessary; committee too restrictive. “Health” Dn not a problem. S1 Obj: “protection of fetus.” Fails rational connection test. Wilson: Violates sec of person, and defects substantive. Also, violates “liberty.” No fundamental justice. S.1 Obj: protect fetus. Can’t limit fr of conscience during first trimester. McIntyre: defer to Parliament (LeDain agrees). Morgentaler (1988)

14. Issue: Does s. 251 violate the rights of the fetus? B. wanted declaration that “everyone” in s. 7 and “every indiv” in s.15 includes the fetus. Unanimous decision written by Sopinka: Borowski’s case is moot. Developed a test for mootness: is there a live controversy? If not, should court hear case anyway? Judicial economy Traditional role of jud. Issue of standing: Borowski no longer had it Borowski (1989)

15. Lived together 5 months; separated partly because of Tremblay’s violence Daigle 18 weeks pregnant; wanted an abortion Tremblay: -went to Que Sup Ct to request injunction to stop abortion. Argued fetus is “human being” under Que Ch of HR & Frs, and under Que Civil Code Judge granted injunction. Conflict bet fetal rts & D’s rights under s. 7 of Charter; fetal rts take precedence Daigle appealed to Que Ct of Ap & lost. At 21 weeks pregnant, applied for lv to ap to SCC. SCC hd quickly on Aug 1; granted lv and scheduled hearing for Aug 8 4 intervenors on each side just after lunch break, D’s lawyer announced D had just had an abortion. Even though moot, wanted ct to continue Ct continued. Court announced decision “from the bench” after hearing: Daigle won. Reasons came later Tremblay v. Daigle (1989)

16. Decision “of the court.” All 9 judges participated even though Que civil code provides for the appointment of a “curator” for a fetus, the order can’t take effect unless the fetus is born alive. A fetus has to be born alive before it can have rights either under the Que Ch of HR, or Canadian Charter Admittedly, there is room for interpretation, but on a matter so crucial, the Quebec legislature would have been clear if it intended the Que Ch of HR & Frs to apply to fetuses. Quebec’s AG intervened, but only to argue for the right of provinces to legislate on certain matters related to abortion. Tremblay lost because the fetus is not clearly covered by the Que Ch of HRs and Frs, and therefore there’s no legal cause for action. Tremblay v. Daigle (cont’d)

17. Issue: 11(b) rt. to trial within a reasonable time In this decision, court developed the “Askov” test for unreasonable delay. Consider length of delay explanation of delay 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 on Askov: judges misinterpreted the stats (Can Bar Rev 1993) Askov (1983-1990)

18. Sauvé (2002) • Impugned legislation: Canada Elections Act, which prohibited prisoners from voting if they were serving more than 2 years. • (First Sauvé case was in 1996. Then, prisoners couldn’t vote at all. Re-enacted with 2 year limit) • Majority opinion by McLachlin (supported by 4 others)

19. Sauvé (2) • Oakes test • What’s the objective of preventing prisoners from voting? • Majority: the objective is too broad so cannot be considered substantially important. • As well, no rational connection between objective and means used, no minimal impairment of rights, and more harm than good is done by preventing prisoners from voting • Social science evidence not used effectively by government, but effectively by Sauvé

20. S. 91(24)of CA 1867: Indians, and Lands reserved for the Indians. S. 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. s. 25 of Charter The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. Aboriginal Rights Cases

21. Calder (1973) • Calder (1973) • Nishga claimed 1000 sq. miles in northwest B.C. • Judson & 2 others: no title for Aboriginals. They are wards of state • Hall/Laskin & 1 other: Aboriginal people have usufructuary rights over lands traditionally occupied • Pigeon: Nishga can’t sue without crown’s permission • Calder’s near win encouraged aboriginal Canadians to lobby for constitutional changes that would protect treaty rights. Result: S. 35(1) of CA, 1982 and S. 25 of Charter.

22. Issue: Sparrow was fishing with drift net too big for regulations Court’s Decision: Regulated rights are not extinguished, therefore still exist under 35(1). Valid regulation must be justified as honouring trusteeship duty. Test: 1) Does impugned regulation interfere with aboriginal right? 2) Justification: Is the legislative objective valid? Is trustee relationship honoured? Is infringement as little as necessary? If expropriation, is compensation fair? Have aboriginals been consulted? Sparrow (1990)

23. Issue: Gitksan and Wet’suwet’en claimed 58,000 sq. km. of land in northern B.C. Questions to be resolved: 1) whether the claims were properly before the court. Yes, but new trial required. 2) whether the SCC can interfere with the trial judge’s factual findings: Yes. 3) what aboriginal title is protected by 35(1), and is infringement acceptable? Governments have a fiduciary duty toward aboriginal people. Infringement of title is acceptable only if demonstrably justified through reasoning similar to Oakes test Delgammukw (1997)

24. 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.” “Purposive” approach to application of Charter Big M Drug Mart

25. 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 dishonours God 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? Crown arguments: 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. Big M (2)

26. Prov. Sunday closing legis co-existed with Lord’s Day Act (double aspect doctrine) 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 Saturdays Objective: create a weekly holiday generally available Dickson: 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. R. v. Edwards Books and Art (1986)

27. The opportunity for families to spend time together is “a pressing and substantial concern.” Second part of Oakes test: Dickson: 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 ispassed. 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 second-guess legislatures. c) overall balance: majority agree test is passed Edwards (2)

28. Stéphane Dion Critical of “yes” side in 1995 referendum Asked by PM to become Min of Intergovernmental Affairs in 1996 & context by-election Proponent of “Plan B:” fed gov’t should be active in opposing Québec separatism. Guy Bertrand (a former sovereignist leader in Québec turned federalist) began a litigation process in which challenged the Québec government’s attempts to institute sovereignty on Charter of Rights grounds. Québec government tried to block Bertrand’s challenge, so fed gov’t continued the litigation through the reference (part of “Plan B”) Québec Secession Reference (1998)

29. Argued in Feb, 1998 Québec gov’t wouldn’t participate, so SCC appointed André Joli-Cœur as amicus curiae. Amicus argued that reference jurisdiction of SCC is ultra vires. Can an appeal court be given original jurisdiction? Yes. Can an appeal court advise? In Canada, yes (despite rule about no specific mention). Justiciability: Too theoretical? Too political? Not ripe? Canada does not have as strict a separation of powers as U.S. Advisory opinion different from a litigated case. Québec Secession Reference (2)

30. Questions: 1. Under Can Const, can Québec secede unilaterally, without a constitutional amendment? 2. Under Int law, can Québec secede unilaterally? 3. If conflict between (1) and (2), which takes precedence? Why did SCC write such a lengthy judgment? 1. Can Québec secede unilaterally under constitution? Arguments in favour based on democracy. What is democracy? Our democracy is based on shared values, and unilateral secession puts these at risk. Thus, duty to negotiate. Was SCC too activist, or not activist enough re “clear question” and “clear majority”? Québec Secession Reference (3)

31. 2. Does international law give Québec the right to secede unilaterlally? Amicus: right to self-determination belongs to all “peoples.” Do Québeckers constitute a “people”? SCC: 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 (4)

32. 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 majority Proportion voting Views of political parties View of Senate Québec Secession Reference (5)

33. After SCC decision: PQ gov’t seemed to support decision. Jacques-Yvan Morin (former Québec intergovernmental affairs minister): SCC decision means feds can’t refuse to negotiate, but can put up many obstacles to Quebec secession. Peter Hogg: Québec can no longer claim that it can secede unilaterally. The “duty to negotiate” secession in face of a “clear majority” vote in favour in a province is unprecedented in world history. Québec Secession Reference (6)