CDN Consti Skeleton 1-2 PDF

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INTRODUCTION TO THE CHARTER 4 Steps to a Charter Challenge - [Oakes]: Step 1: Does the Charter Apply/Does Claimant have standing? Government Action/Standing. Step 2: Infringement/Breach of Charter Right? (a) Characterize the Law= Purpose and Effect of the law (b) Determine if infringed: Meaning of the Rights Claimed: Purposive Approach to determine what the right protects and whether effect of law has in infringed this right Step 3: Justification, Reasonable Limits on Charter Rights: Can the law be justified under section 1? = Contextual Approach (refer to s.1 below). Step 4: What Remedy is available? s24/s52.

Always ask y positive or neg A. WHO HAS TO s Dolphin Delivery [Legislation] = G [CL] = No Govt A

[CL] + [Govt] = C the common law is regu  s52: Any law CHARTER INTERPRETATION force. Dolphin Delivery  WHEN ANSWERING AN EXAM QUESTION o You start by talking about the contextual approach injunctive restraint parties = Fail, Char and the purposive approach. You will talk about govt actor. No char Hunter v Southam and these principles that have  “Where priva been set out. the common l o Charter developed for purpose= to protect rights relied on to su apply” o THEN WHAT IS PURPOSE OF SECTION (ex: s.8)

Purposive Approach: (Hunter v Southam: Use Purposive approach and give charter rights a large and liberal interpretation). Not ordinary stat interpret= charter must be capable of growth and development over time= living tree LSUC v Skapinker: Charter used to guide/serve Cdn community. Cannot give narrow interpretation to stunt growth of the law. Big M Drug Mart: Generous interpretation rather than legalistic to secure full benefits of charter- Dixon J Motor Vehicle Case: Court Rejected Original Intent: Adopting a strict original intent has the effect of freezing rights at time with little possibility of growth

[Govt Actor] + [L

[Private Party] + a private party, but you Dolphin Delivery legislation, regulations, laws and regulations of not suggested that this  Where such exerc and where one pr infringement of th applicable. Blainey: Discrimin Reconciliation of Competing Rights The charter applied No Hierarchy of rights; balance competing rightsof the Human Righ charter can’t be used to nullify other consti rights comes from delega such. Contextual Approach: Used when imposing limits on [Private Party] + charter rights = s1. charter values to Haig v Canada: Voting Rights s3: Right is limited by have a private party on contextual factors such as geography and history. Can only Hill v Church of S vote where you are a citizen. dispute= Charter v Singh: s7 Life, Liberty and Security: Unconstitutional to inconsistent with C extradite to get death penalty bc of contextual factors; death P apply directly, whe is not infallible; due process; international obligations. should do so in a w

economic environ PURPOSE: Core V we protect FOE:  Seeking & attai  Participation in political debate  Individual self-f

STEP 1: Is ther MAIN WRITE: Canadian often finding breac step approach Mon WRITE: 1) Doe content, thereby b Does the metho protection?; and 2(b), does the go

ELEMENT 1: Does Expression: Exp Attempts to Co things suc co WRITE: Expression communication tha Irwan Toy, princip under 2b, whereas disturbing, cannot Here, the Examples: Politic [Irwan Toy/RJR Picketing Dolphin NB: Freedom of express oneself.>“[ the right to say no Silence is in itse circumstances can could do”>(Slaight S.C.R. 1038>at 108 constitute a r Communications, s Bank of Canada v. S C R 269)

narrow restrictions on advertising promotion of lifestyle. Legislative Purpose to provide legislative response to national public health problem. Deleterious effects low end. Court says where commercial expression is used to induce people to engage in harmful or addictive behaviour, its value becomes tenuous. Key Points: Parliaments chosen means must be accorded considerable deference, means must be carefully tailored to the objective, parliament may chose from range of reasonable alternatives. Political Speech - Ban on Bus Advertising: GVT v Canadian Fed of Students: Not justified- Valid Objective: Limiting ads is to ensure safe and welcoming transit system. No Rational Connection: Court said there is difficulty how ad of political content on side of bus might create a safety risk or unwelcoming environment for transit users. Fails on Minimal Impairment: Overly broad, there are targeted ways to restrict political speech rather than making a blanket ban. Must remember political speech is at the core of freedom of expression as it is to ensure the truth, so if you will justify the infringement of political speech, it will require a pretty significant objective. Spreading False News: R v Zundel: protected by s.2(b)not justified under s.1: Z was a holocaust denier. He published pamphlet suggesting that holocaust was a myth contrary to legislation that prohibited the punishment of a tale you know to be false. No Objective and language was broad: How do we know what is true and false, What is a public interest, There is no valid objective. To stifle a whole range of speech, which is legitimate and beneficial to society is not justified- leg struck down.  McLaughlin- “To permit imprisonment on the ground that they have made a statement which 12 of their co-citizens deem to be false is to stifle a whole range of speech, some of which has long been regarded as legitimate and even beneficial to our society

SECURITY OF THE PERSON: Physical or Psychological purely specula security. concrete evide o Security of the personal is generally given a - Blencoe: Court d sexual harassme broad interpretation and has both physical and states processing psychological aspects Singh caused by the co o The right encompasses freedom from the threat complaint. The s of physical punishment or suffering anxiety. Surresh/Singh o Security of personal includes a right to control - Rodriguez: Doc he will not perfor his own bodily integrity – will be engaged where connected to R's state interferes with autonomy / ability of cause deprivatio person to control his own physical/ squarely rejected t psychological integrity Carter. legislation that re For Example: Prohibiting assisted suicide; regulating abortion or imposing unwanted medical treatment. Personal Autonomy: Control over ones Bodily Integrity: personal autonomy free from state interference over one’s bodily integrity either physical or psychological; - Carter Bedford: preservation of physical safety and wellbeing: CC CC provisions prevented prosti’s to take reasonable steps to make environment safe Serious State Imposed Psychological Stress: (New Brunswick v GJ): This is security. Carter/Rodriguez- right to choose to terminate life fundamental personal choice, if denied- can impose serious psychological stress. Blencoe: Does not Cover ordinary stresses and anxieties of life Deportation: Suresh: Court holds that deportation to face torture is violation of security of the person. State Delays Imposed by Waiting Time/Accessing Health Care: Chaouilli: wait for months not knowing if cancer going to get worse or that there will be irreparable harm in terms of delay of treatment=physical and psychological stress Medical Treatment: Morgentaler Cited in Rodriguez: Security of a person must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction;

STEP 3: Assess 

If consiste justified (s If contrary (see if can fails PFJ

 ECONOMIC INTERESTS:: No Charter Protection For Purely Economic Interests or Security (ie Welfare, social housing, basic standard of living) *unless engages LIFE* [Irwan Toy: The choice to not include property in s.7 means that liberty At a bare minim and security of the person do not extend to economic liberty and security. must look at are  In cases where it has been attempted to be argued, it has been rejected.  Irwin Toy ‡ Court was emphatic about rejecting property in S7 and stated that if it were otherwise, then the expressly excluded property WRITE: once they rights would get back door entry into protection through s7 t th h t

STEP 4: Section 1 Justification?  “Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” [Para 85]- BC Motor Vehicle o This is changed in more recent cases. o FROM BC MVR until Bedford, Lamer’s conception of when s1 applies to S7 was largely unchanged. o S7 violation could only be justified in the most extreme cases such as war, natural disasters, and epidemics.  It was rare to say that we have done something contrary to fundamental justice and it was justified. 

But more recently in…cf Bedford and Carter … Court clearly indicates that it is still rare for a Gov to be able to justify a violation of s7 under s1 is rare, what these two cases make crystal clear is that all cases of violations of s7 will attract a s1 analysis. o Section 1 has a very real role to play in all s7 cases, not just those that fall within the extreme examples that are found in Lamer’s paragraph in BC MVR. o We need to weigh social considerations and policy considerations only in the S1 analysis o

Distinction: Bedford (par. 125) “Section 7 and s. 1 ask different questions. The question under s. 7 is whether the law’s negative effect on life, liberty, or security of the person is in accordance with the principles of fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross disproportionality, the specific questions are whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose. Under s. 1, the question is different — whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest. The question of justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights.”

(2) Whether the g minority lacki (3) Whether char changeable o (4) Whether char ground if disc EQUALITY - Section 15(1) is similar in a included unde BRO TIP: There are two situations for equality rights, your either looking at individual rights or your gonna be looking at whether there is an amelioration program that already in place - Analogous Grou citizens, non-citiz taking care of the guy that’s saying he wants equality. whereas such wil overlooked + the WRITE: 15. (1) Every individual is equal before and under the (Andrews); Sex law and has the right to the equal protection and equal benefit Status (Miron v of the law without discrimination and, in particular, without Reserve (Corbie discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. - NOT Analogous Substance Orient PURPOSE WRITE: Purpose of s 15 is to ensure equality in the formulation Lavine); Workers and application of the law ; The Promotion of equality entails (Martin). RCMP o the promotion of a society in which all are secure in the ee’s (Delisle). Po knowledge that they are recognized at law as human beings open since those equally deserving of concern, respect and consideration per sometimes born Andrews

WRITE: Accordingly, in order to establish a violation of>s. 15(1)>, a person “must show not only that he is not receiving equal treatment before the law or that the law has a differential impact on him in the protection accorded by law but, in addition, must show that the legislative impact of the law is discriminatory” Andrews **TIPS  Section 15 has a wider scope than simply ‘equal’ under the law.  Discretionary decisions are unlikely to be captured by s15.  You need some connection with law and a decision that is made pursuant to legislation  However, still emphasise the contextual and purposive approach outline in Andrews  15(1) focus on preventing governments from making laws that discriminate Meaning of Equality: Consideration must be given to the content of the law, to its purpose and its impact upon those to whom it applies and also upon those whom it excludes from its application. It is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in

ELEMENT 2: is t creating a disad stereotyp At this stage we w the adverse effec second step c understanding of a d i l

*****PURPOSE*****: s15(2) is so govt programs cannot be cut down by s15(1). Section 15(2) works in furtherance/expression of equality, rather than an exception. Section 15(2) enables governments to combat discrimination through programs aimed at helping disadvantaged groups without fear of challenge under s 15(1) claims by groups that do not share the particular disadvantage. Kapp Structure:  Go through Step 1 of s.15(1)-distinction, then s.15(2) analysis. If s15(2) met, then end and gov’t justifiedhowever still go through discrimination by saying if I am wrong..  If s15(2) not met, then go through Step 2 of s.15(1) to see if discrimination= infringement of s.15(1) right  *Burden on Claimant to prove 15(1)- analogous ground then burden shifts to gov’t to prove 15(2) Once the claimants are able demonstrate a distinction on enumerated or analysis ground, then shifts to government that, that particular program is protected by section15(2).  S. 15(1) à PREVENTS governments from making laws that discriminate  S. 15(2) ENABLES governments to make unequal laws in order to combat discrimination.  S. 15(2) ≠ exception to s. 15(1)  S. 15(2) ≠ mere clarification of or interpretive aid to s. 15(1).  S 15(1)&(2) work together to confirm s. 15’s purpose of furthering substantive equality. [Kapp, para 34-37]

Case Examples: R established there is must show that the purpose: YES, man license. They includ rights claims, provi and supporting the benefit the aborigin economy by comm

FREEDO WRITE: Pursuant t following fundamen

**TEST** WRITE: As per Kapp, To satisfy the requirements of section 15(2), the government must establish that: a. The program has a genuinely ameliorative or remedial purpose; and b. The program targets a disadvantaged group identified by the enumerated or analogous grounds (Kapp, supra>at paragraph 41).

WRITE: Freedom o entertain such relig to declare religious hindrance or repris by worship and pra dissemination”>Syn WRITE: F and comp divine/ or belief in c

STEP 1: Program has Ameliorative or Remedial Purpose [Kapp] WRITE: The gov must establish that its goal in creating the program or benefit in question was to improve the condition of a group that is disadvantaged + court will consider rationality of the means chosen to reach the ameliorative goal would contribute to that purpose. Kapp

THE TE WRITE: The Supre determining wheth 2(a) by virtue of Hu An infringement of h

3.

Must establish a Norm/Standard of General screening citizen born to Canadian Application (whether binding or not) but did not requir 4. Must be Enacted by Govt Entity Pursuant to Rule Canadian fathers Making Authority 5. Rule Making Authority Exists if Delegated by Govt - M v H: No RC: E Entity for Specific Purpose of Making Binding Rules provisions of legi of general application? Is it indoor management or objective of supp binding rules? If Court decides YES, these policies meet inequities arising the requirement, they are prescribed by law. b. Minimal Impai Implied by Law: R v Orbanski: Breath side test screening is Oakes says govt necessary action in duty to enforce the criminal code the right. Dixon J provisions against drunk driving = Implied by law, satisfies test: Whether th prescribed by law requirement. is necessary to a impaired as little Excessively Vague Laws: That do not define powers in Huttarian Brethr precise manner IS NOT effective limitation. Court took less drastic means relaxed approach, nearly because law is subject to various substantial manner shades of interpretation, this does not make it vague. Suresh alternatives, will pa Case: Terrorism and such are vague terms but that does not  1) what are rea make it unconstitutional.= sufficient for “prescribed by law” impairing way t  Do not unduly circumscribe those definitions. Unless you have a fairly  application of the m clear case of vagueness, your vagueness arguments are probably going to  The central elemen fall upon deaf ears at the SCC the absolute least  Bulk of analysis c. Deleterious Eff Benefit of having deleterious/harm infringing the rig effects of a meas must be to be jus Thomas Newspap down ban on opinio marginal and impa impairing way to ac marginal and impa effects outweighed Test= strike dow rationally connecte achieving objective balance is not up STEP 2: Limit on a Charter right must be reasonable and o The Court can s demonstrably justified test even though ‘THE OAKES TEST’ going about ach *If fail one of these, then fails s.1= gov’t not justified* Huttarian Brethr -However if I am wrong..(do all) to this factor: Be Burden of Proof = On Government (Burden Shifts to Govt to theft outweight. Jus prove justification of infringement). the members of ab  The Charter is silent with respect to any mechanisms or ways in which will have to make a rights or limitations on rights are to be justified. living= low end of  There is no guidance within the Charter itself that talks about how we are  Bulk of analysis dt i t t d l th t t th i t th t

When Will Mandatory Minimums be Contrary to s12?: s12 will only be violated when punishment prescribed is so excessive as to outrage standards of decency = Punishment is Grossly Disproportionate to what would be appropriate in the circumstances= weed example - Considering Hypothetical's: Must be marginally imaginable and a real possibility. Smith: Bringing a joint over because you forgot and come across the border. Mandatory drug penalty would be cruel and unusual= struck down

At this stage of the the right is reason into minimal impai means of achieving at para. 53). The absence of less dra real and substantia at this stage is of Charter rights i to achieve the state

(3) there is prop salutary effects of This stage of the O on protected rights terms of the greate law is not minimal this step.

(Re:Firearms Act). It is a matter of balance and of federalism. Not one Ancillary Doctrine = level of government is isolated form the other, nor can 1 usurp the as “in relation to” a m functions of the other. There is no argument that an appropriateto have incidental balance must be maintained between the federal and provincial heads competence of the en of power. A federal state depends for its very existence on a just and workable balance between the central and provincial levels of government (Re: Secession of Quebec). CONSTITUTIONAL OPERATION AND THE DIVISION OF FEDERAL PARA LEGISLATIVE POWERS COMPLIANCE R v Morgentaler + CA 1982 ss 52 = A law that is enacted outside the jurisdiction of the province will be rendered inoperative to the extent*ROTHSMAN* CA 1867 ss 92 of that inconsistency. development and THE NATURE OF OUR CONSTITUTION CA 1867, ss 91-95; CA 1982, ss 38-49 = procedure for amending the resources + expo resources can be d constitution of Canada, s 52 = Constitution of Canada is Supreme = prevail, 94A mean Any law that is inconsistent has no force or effect. Is it within legislative authority to repeal the British north disability benefits American act, or enact legislation altering the upper house of made by parliamen parliament? Re Upper House: not within legislative authority to laws override provi abolish senate on a constitution formed by the Queen House Of Commons And The Senate. The senate provides a balance for Law Society of BC representatio...