Canadian Constitutional Law Section B: March 9, 2013

1. Canadian Constitutional LawSection B: March 9, 2013 Judicial Decisions on the Charter of Rights Course Director: Ian Greene

2. 1968: Trudeau became PM. He wanted: stronger federation patriation of constitution Const. Charter of Rights better-protected language and mobility rights 1970: Molgate-MacGuigan Committee found strong support for a const. Charter 1971: Victoria Charter agreement for Ch and pat. opposed in the end by Quebec and Alberta 1976: PQ elected in Quebec 1980: Referendum Trudeau promised renewed federalism 1981: negotiations; no agreement “unilateral” patriation attempt reference to 3 Prov Cts of Appeal; appeal to SCC SCC Ruling: legal, but breaks convention Nov. 1981 const conference compromise Monahan Ch 13 (Ian Greene)

3. 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 obstante) clause • 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

4. 1. Limitations clause 2. Fundamental freedoms: conscience and religion thought, belief, opinion & expression press and other media peaceful assembly association 3-5: Democratic rights: citizens 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 2/3 vote sitting of Parliament, and prov. Legislatures, at least every 12 months The Charter of Rightsbecame law April, 1982

5. 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 reas time jury trial if liable to 5 years imprisonment no retroactive offences no double jeopardy least punishment if law varied Mobility and Legal Rights

6. 15 Equality before and under the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability Affirmative action programmes OK 16-22: Language supplements 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 “official langs” Debates, 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 Equality and Language

7. 23: Minority lang ed citizens whose first lang is Eng or Fr, or who attended prim school in Eng or Fr, have right to educate children in that lang. Siblings rights applies where numbers warrant 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” Minority Lang Education, remedies

8. 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” clause) General

9. 29: denominational school rights in CA, 1867 not reduced 30: Territories included, now and later 31: Charter does not extend legislative powers; it is a limit 32: 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 General (continued)

10. The Charter undermines legislative supremacy & therefore democracy Mandel: 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. Charter erodes participatory democracy. Human rights can only be protected by the vigilance of citizens Cost of litigation compared to the political process Lavigne case: NCC spent $500,000; unions $400,000 + OFVAS case: why didn’t artists use political process to change Ont censorship law? Didn’t know how. (But think of cost of lobbyists) S. 33 override is undemocratic The Charter and Its Critics

11. Charter litigation focuses attention on cases that happen to get to court, not necessarily most imp issues for society (Dean Monahan, Osgoode Hall Law School). 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 eg. Appropriate procedure for determination of refugee cases Schachter case (changes to parental leave policy) Adversary system gov’t lawyers argue for a narrow interpretation of Charter, whether or not this is gov’t policy courts rely on arguments from counsel. Sometimes, no section 1 arguments Do judges get a complete analysis of the issues? Charter Critics (2)

12. Backgrounds of judges older than average adult disproportionately married with children predominantly male New Canadians and Aboriginals under-represented on bench most from business or professional family tend to be successful appointment process for Prov Courts and prov. Superior courts improving. Elevation procedure, and SCC secretive Similar problems with lack of representation in legal profession Charter critics (3)

13. “Oakes Test” for Section 1 • S 1 of the Charter: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free anddemocratic society. • The Oakes test has two parts: • First, the objective of the government in limiting a right must be of sufficient importance to society to justify encroachment on a right. • Second (“proportionality test”), the limit must be reasonable and demonstrably justified in terms of not being out of proportion to the government objective, and must therefore satisfy three criteria: • (a) it must be rationally connected the government objective, and not "arbitrary or capricious“ (“rational connection test”); • (b) it should impair the right as little as is necessary to achieve the govern­ment objective (“minimal impairment test”); and • (c) even if all of the points above are satisfied, the effects of the limit cannot be out of proportion to what is accomplished by the government objective — in other words, the cure cannot be allowed to be more harmful than the disease.

14. Presentations • Monahan Ch 14 (439-460): Ketevan Tkabladze • Monahan Ch 14 (460-475): Leah Godin • Case 22, The Queen v. Big M Drug Mart (freedom of religion, 1985): Stacey Berry • -Case 24, The Queen v. Oakes (1986): Helga Gonzalez Leyton • Case 25, Morgentaler v. The Queen (abortion, 1988): Aleem Maginley

15. Presentations continued • Case 28, R. v. Keegstra (hate speech, 1990): Suren Ganeswaren • Case 31, RJR-MacDonald Inc. v. Canada (AG), (advertising, 1995): Monica Ahmed • Case 34, Sauvé v. Canada (prisoners voting rights, 2002): Kyi Kyi Thin • Case 36, Chaoulli v. Quebec (AG), (right to adequate health care, 2005): Faud Adbi

16. Presentations (continued) • Case 37, Health Services and Support (SCC overrules a previous decision and expands labour rights, 2007): Parastoo Aznavehzadeh • Case 39, Delgamuukw v. BC (aboriginal land claim rights, 1997): Maiwand Noor • Case 40, R. v. Marshall (aboriginal constitutional fishing rights, 1999): Obaid Daud

17. Presentations (continued) • Case 48, Ref. re Secession of Quebec (principles of Canadian democracy, 1998): Lil Manger • Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 (Insite decision): Farrah Zandnia

18. Monahan Part Six (Conclusion) • Is Quebec secession as much of an issue now as in the past? • Problem with power imbalance between legislative and executive branches: would senate reform help? • Shift away from constitutional concerns to economic concerns • What viewpoints do you think Patrick Monahan will bring to Ontario’s role in Canada in his new role as Deputy Attorney General?

19. Greene, The Charter of Rights, Ch 5 • General trends in legal rights decisions by the Supreme Court • Capital punishment and the Burns case (2001) • Fighting Terrorism while respecting human rights: Charkaoui (2007 & 2008) and Khadr (2008 & 2010)

20. Course evaluations • Need a class rep to collect the evaluations and deliver them to Jasmattie • Professor will not see the evaluations until after the last date for appealing grades has expired, and all appeals (if any) have been settled at the highest level.