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POLS 317 (1)

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Political Studies
POLS 317
Janet Hiebert

Pols 317 - Creation of the charter was radical and controversial within Canada o Some viewed it as undemocratic o Rights are not absolute, there is a limitation clause o Notwithstanding clause  Potentially allows Ottawa or the provinces to set aside a judicial ruling  Whats the point of having a charter with a clause that allows parliament to ignore it? September 14 - The term rights is fairly young, the idea of rights as normative constraints on states - The language of rights suggests authority - If everything was a right, rights would collide o Necessary to be reasonable in rights, and limit them to the essential - Most disagreements are resolved through (political) processes, majoritarian processes - Difference between using rights to make the state stop something and asking for them to do so o Distinct rights claims and claims for wants - Language of rights o Natural law/rights – the idea that individuals are able to make certain claims on the basis of human nature, but for which there is no remedy within civil society. There is nor remedy for your natural right being violated  For many this was odd and obscure  The stoics were amongst the earliest proponents of natural law – it was something to be discovered and applied. There was a universal law of nature. Ascertained by reason, it provided the basis of justice for human made laws  Spread of Christianity led to natural law becoming divine law, in part miraculously revealed and in part ascertained by reason  The pope was invested in interpreting the word of god, which was binding on all  Emerge of the idea that human law is subservient to natural law if there is conflict between the two  Natural law cannot encompass all matters of human affairs o A need for manmade law  Idea of respecting laws evolved into the divine right of kings, suggesting that kings laws were divine laws, and that all were bound  Kings power comes from god o Power does not come to the king from the people  King makes all final decisions on aspects of government, and anyone who makes political decisions throughout the kingdom do so under the king, subordinate to his law  If the king acts directly against gods command, a subject may need to disobey the king, but will suffer the consiquences o Locke – humans had fundamental rights in the state of nature, and when civil society came into being, humans brought these rights into society  Social contract/ theory of natural rights  Assumptions about natural law – how else could they be binding if not natural?  Natural rights were for placing prohibitions on rulers, not the ruled. Opposes the divine right of kings  Right to life, liberty, and property  Civil society rests on the social contract agreed to by the citizens  Contract was necessary for creation/origin of civil society  Social contract was not social rights, it presupposed them  There is a sacred obligation on the part of the state to protect the citizens natural rights o If the state fails, it forfeits its rights to govern, and society reverts back to the state of nature - How do you reconcile two claims of natural rights? o French revolution didn’t inspire confidence - Rise of positivism/human made law o Bentham, a utilitarian. It was futile to expect anyone to follow any natural laws that did not have pain and pleasure at the core  Natural rights “nonsense on stilts”  Rights can only be meaningful if they suggest a duty that can be transformed into laws o Marx rejected natural rights. They only make sense in the context of social and economic regulation. The occupation of capitalist individuals o Rights to liberty, property, security, and resisting governments are for perpetuating material capitalism. - Mill contributed to rights resting on the fundamental right to liberty o An individual has the right to do anything providing it doesn’t cause harm (the harm principle) to others o Freedom from interference - Explosion of rights talk since WW2 o Belief that Rights protection should not be entrusted at the state level on the rise o Whether there is a higher law that would render state laws invalid should they collide o Still seemed inadequate to address the complex issues of society: euthanasia, suicide, capital punishment o Sense that rights are no longer derived from natural law, but reflect what it is to be human - Bills of rights act as freedom from the government, constraints that protect the individual from the state o Limits on state actions - Human rights o Encompass civil and political rights, along with economic and cultural rights o Not found in bills of rights o Associated with UN declaration of human rights 1948 th September 19 Why a bill of rights wasn’t an obvious choice for Canada - Until recently, there were basically two choices for evaluating the actions of the state o Bill of Rights, and authorize courts to interpret those rights and provide remedies for infringements (rephrasing/reinterpreting , declaring legislations invalid so its rewritten)  Having judicial review assumed that courts would have remedies o Parliamentary sovereignty/supremacy  Final say rests with parliament  Makes a constitution seem impossible, if not also undesirable  Rights are well protected without a bill of rights  Having a parliament implies freedom of expression, etc  Parliament holds the government to account, and protects the citizen  Right to self governance, rights to anything that isn’t restricted by law - Since WW2, there has been an explosion of Bills of Rights around the world o Westminster systems are adopting bills of rights, (including Canada) - 1960 – Diefenbaker government adopts a statutory bill of rights called the Canadian Bill of Rights o Statutory meaning it wasn’t constitutional, just a regular law, only applying to the federal government  Diefenbaker asks for law that Judicial minister has to report to parliament whenever government wants to pass a law infringing on these rights o Legislative rights for people  Start looking for infringements of rights before the laws are passed, not after - Court was unfamiliar with the idea of a bill of rights, they had been submerged in the parliamentary sovereignty o Robinson vs Rosetanni 1963 - in Canada we had the Lords Day act  Made it a crime to have a business operating on a Sunday  Rosetanni was Jewish, and felt discriminated against him because the Jewish Sabbath is on Saturday, and he shouldn’t have to keep his business closed on Sunday o Courts were weak on the case, and made the government feel like it didn’t need to worry about a bill of rights o Parliamentary Sovereignty continues on as usual - 1982 Charter Signed o Hull Hotel agreement between Justice minister of Saskatchewan, Justice minister of Ontario, and Jean Chretien, justice minister for Ottawa  Provinces would agree to the charter in exchange for a recognized amending formula (notwithstanding clause) - Late 1980’s – New Zealand has government too powerful, needs a check on government o Labour/justice minister (in opposition) argues for a bill of rights, gets elected o Can’t convince his party for a bill of rights  Compromise for a bill of rights as just ordinary legislation, and introduce judicial review (but no power to make law invalid)  Minister of justice has to report to parliament if a law is going to violate rights - U.K. 1997 – Blair government wins o Statutory Bill of Rights – parliamentary sovereignty still in place, judges can’t declare law unconstitutional, but can declare its inconsistent with rights  Idea was that this would put lots of pressure on parliament to comply regardless of legal obligation - Arguments for Strong form judicial review o Forces governments to respect the law and consider the rights dimension o Makes it hard for governments to take shortcuts on laws that impact rights o Protects the rights of unpopular groups and minorities o Judges are just better at reasoning through rights cases  No pressure to be elected or to appeal to any voters o Parliament is a threat to rights because politicians are thinking short term in public opinion o Judges can only make an impact if they have the right to remedy rights infringements - Arguments against BoR’s with Strong form judicial review o Waldren’s Rights based objection for BoR  Assumptions:  Democratic institutions are in reasonable working order  Most members of society are generally committed to the idea of rights  There will be inevitably persistent but good faith debate about rights  Majoritarianism doesn’t guarantee the right answer  There are not obvious right answers (court verdicts 5-4, or 4-3)  If courts are rarely unanimous or agreeing, why should they be the ones making the choices when there can be a democratic process  If the courts are working in a majoritarian process (five beats four), why not take it to the democracy  The most important right is the right of self governance  A BoR governs your rights o Question of neutrality of the law  Judges have preconceived notions and biases that influence their judgement  Neutrality assumes that there is even a norm to base judgement on  That norm is pretty white/male/heterosexual st September 21 How did we get the charter - Until 1982, there was no (American style) bill of rights in Canada o Parliamentary review - There was not a strong public demand to have a charter of rights before 1982 o There was however a strong impetus for constitutional changes o We were no longer a colony of the UK, but the BNA act was an act of the British parliament  We had never passed a Canadian version of our own o Provinces were getting more powerful, and they wanted more say in how they interact with Ottawa - Trudeau wants a charter o He wants it because of his Liberal party philosophy  And he wants to constrain quebec’s attempts to protect their own cultural objectives o He wants it because of his liberal beliefs regarding the governments power over citizens - None of the provinces wanted a charter o They were fearful that it would have more of an impact on them then it would Ottawa o They didn’t like the form Trudeau wanted  If we didn’t have a limitations clause, these rights would be seen as absolute - After 3 years of discussion, they agree to a very limited bill of rights in 1971 – Victoria Charter o Fairly limited rights o Limitations clause was so broad in terms of what kinds of government practices could restrict rights o Quebec Premier goes back to quebec to try and sell it, tons of backlash, so it doesn’t get passed - 1978 Trudeau brings the issue of charter back up o The provinces had no incentive to agree because Trudeau had only 1 year left and all the polls said he would lose - Trudeau loses to a conservative minority of Joe Clark o Clark doesn’t want a bill of rights o Clarks government delivers a budget 9 months in, and they lose so the government fails o Trudeau has since retired - Trudeau comes out of retirement and the liberals win majority - Quebec has its first referendum on sovereignty association (separation) o Separatists were defeated - Trudeau decides to screw the provinces and goes to Britain to ask them for the charter back o Going to get a charter whether they like it or not and create one that binds the provinces o They take it to the supreme court even though Trudeau has no legal obligations to go to the supreme court  Courts decide that legally Trudeau can do it, but in a conventional sense it would be wrong  The convention says it would require significant provincial consent o Trudeau’s threats had some unintended consequences  Canadians begin to develop interest in the charter issues  Provinces found themselves on the defensive for why we shouldn’t have a charter o Changes the limitations clause so that rights are guaranteed unless there is a restriction implemented by the government consistent with a free and democratic society o After this, the provinces argue more for the notwithstanding clause - Kitchen Accord/Night of Long Knives o 3 justice ministers agree that the provinces would sign on as long as there was a notwithstanding clause, which Trudeau begrudgingly accepts o This happens with nor referendum and no Quebec consent - Quebec is pissed o Supreme court is appointed by Ottawa, not provinces o Part of quebec’s cultural revolution was insisting on the primacy of French  What would happen with language laws?  School language policies and advertising/sign policies were struck down by the Supreme Court - Key sections o 1: limitations clause o 24: makes it clear that you as a citizen can go to the court if your rights are violated, and they can remedy it o 32: charter applies to legislature o 33: notwithstanding clause o 52: the constitution (including the charter) is the supreme law of Canada, and that any law that’s inconsistent is void th September 26 - Before the charter, we had two fundamental constitutional principles o Parliamentary sovereignty o Separation of powers - Mechanism for resolving disagreements between the provinces and Ottawa o Power of disallowance – Ottawa could veto any parliamentary laws it disagreed with o Provinces argued that too often, Ottawa was using it for partisan reasons o As the provinces gained power, they went to the courts with their complaints  Went to the JCPC (ensured that all legislation of the colonies was consistent with the British empires laws)  JCPC was sympathetic to the provinces o Supreme court wasn’t our highest court until 1949 - What our Supreme Court has done on Questions of Rights o Parliamentary sovereignty had a huge effect on the Supreme Courts public appeal o Judicial review before the charter was Federalism (which government can do it, not can any government do it) o 1867 – 1938 – courts acted as if it was improper for them to rule on rights claims against the government o 1938 – 1959 – Golden Age: the supreme court found clever ways to protect rights without a bill of rights o 1960 – Canadian Bill of rights era: court was so timid in its interpretation of the Canadian bill of rights that it robbed it of its meaning - First period (1867 – 1938) o Parliamentary sovereignty deeply engraved in judicial/legal culture o 1899 – Bryden decision: court refused to address the human rights issue in a BC law that said Chinese individuals were not allowed to work in the mines of a province o 1899 – Sparrow case: a black couple were refused permission to take their reserved seats in the Orchestra section of a theatre – courts were prepared to grant damages for failure of contract, but wouldn’t address the racial issue of why they weren’t admitted o 1903 – BC had a law that denied the right to vote to Chinese, Japanese, or Indian Canadians  JCPC dismissed the issue as “not an issue their lordship should address” o 1914 - court upheld a law that women could not work in a business owned by a “chinaman” or where a Chinese person worked - Second Period o 1938 – Alberta Press Case: economic policy was highly criticized, had bad press. Passed a law that required the media to get assurance that their reporting was truthful (form of censorship.) the media needed to get permission to publish certain articles from the government, limiting their ability to criticize. Supreme court struck down the law. Other judges struck it down on federalism grounds, saying the province didn’t have the right to pass such a law o Quebec was pretty oppressive to minorities under Premier Duplessis o Boucher Case – “quebec’s burning hate for Christ and god and freedom is the shame of all Canada” – pamphlet boucher was distribution, he was arrested for seditious libel. Argued against the religious persecution of jehova’s witnesses. Commonlaw rule for seditious libel required writing describing seditious intention (not a defined term). The definition at the time was pretty repressive of free speech, so they chose to come up with a new one. Boucher case showed that the court was willing to revisit its old rulings to try and protect fundamental rights.  Also recognized the courts authority and willingness to do so o Roncarelli vs. Duplessis (another Jehovah’s witnesses case)  Duplessis used his power to cancel Roncarelli’s liquor licence because he had posted bail for Jehovah’s witnesses  Rule of law says that no one is above the law, including a premier  Supreme court said that Duplessis had exceeded his lawful abilities and abused his power  Duplessis quickly passed legislation negating the court’s decision to make it legal - Avenues for the courts protecting rights o Federalism o Saumer vs Quebec: Jehovah’s witness had challenged a Quebec City bylaw that said you could not distribute and pamphlet without the approval of the chief of police (police were prejudice against Jehovahs). Clear interference with freedom of expression, and amajority of courts declared the law invalid based on federalism. Quebec was criminalizing the distribution of religious material, and Quebec doesn’t have jurisdiction over criminal law. However, one of the majority judges looked back to the Alberta press case, and said that it is a matter of principle to allow laws that promote discussion o Switzman case (the “Padlock” case): Act Respecting Communist Propaganda. Legislation was intended to prohibit communist propaganda’s distribution, so they would padlock any building used for communist purposes (Duplessis was afraid of communism). Court ruled that Quebec was criminalizing communist propaganda, which goes against federalism. 3 judges ruled in favour of Quebec. - Idea circulates within academic circles of whether or not we need a bill of rights o Deifenbaker argues that parliament isn’t getting an opportunity to address rights because it is being dealt with behind the scenes by judges o He wasn’t necessarily hoping the courts would play a huge role, but argued that the minister of justice had to report to parliament every time they were making legislation inconsistent with rights  As if any minister would stand up against their own party before parliament o Bill of rights applied only to Ottawa, not the provinces o It was statutory, so it could be repealed by any government o Drybones Case: An Indian trapper who had been found drunk in a hotel, arrested, convicted, and fined 10$ after he paid his fine. He was challenged under the India Act, which made it an offence for an Indian to be drunk off the reserve. This was different from the provincial act that said you can’t be drunk in public. The case was whether equality was violated based on the fact that he was judged according to his race. o Lavell Case: Regarding treating Indian status of men different than Indian women. Any Indian women who married a non-indian lost her status as an Indian, but men didn’t lose their status marrying non-indian women. Court didn’t focus on the substantive issue of equality, but focused on the technical issue: had the law been fairly applied to all status women and men the same within each gender. Doesn’t matter if the law is fair, as long as it is applied fairly, and gender doesn’t count o 1978 Bliss Case: federal government unemployment benefits. Issue was that there was a lnger waiting issue for qualifying if you were pregnant, so that no pregnant women would claim benefits unless she had been working when she became pregnant. Court ruled there was not violation based on sex, it was because their pregnant, not because their women. September 28 th - What happens when we adopt a constitutional bill of rights - How the court resolves issues is biased by subjective values about which rights trump other rights (right to picket on owned propert; free speech vs private property) if you are evaluating contrasting rights claims, you will be imposing personal views on rights and that isn’t the responsibility o Reluctance to address rights cases - Operation Dismantle case: had a coalition of peace groups, labour groups, and assorted other interest groups challenging Canadian governments decision of allowing the testing of American cruise missiles over Canadian air space o Argued that by allowing this it violated section 7 of the charter (protects the rights to life, liberty, and security of the person)  By allowing this, Canada was increasing the likelihood that there could be nuclear th warfare, which would in turn endanger your section 7 rights o Government was pissed, said the court wasn’t allowed to rule on foreign policy o Supreme court disagreed, justice bertha Wilson argued that they weren’t reviewing whether or not it was good or bad policy, but to just review if it was consistent with the charter  Supreme court felt comfortable potentially reviewing foreign policy - Raises the question of if there are any areas in which the supreme court should not review - Some will argue that its the courts law to follow a bill of rights exactly as written, and not create/elaborate/interpret outside of the bill of rights because it is not their role to create law o Critics will say that the bill of rights is not a roadmap, it cannot be followed word for word. The courts have to make sense of what rights mean and what they don’t, that laws can be outdated (US) o This debate is incredibly relevant for gay rights  The court routinely denied these claims as they were not listed in the charter  Chretien (as justice minister) said that since there was broad public acceptance for race/age/gender as protected from discrimination, they deserve it  Also argued that it was prefereable for the government to have the equality rights written in an open ended way so that in the future if the courts sought to interpret additional rights as protected under equality, they would have a way to do so  As the debate grew heated, it put pressure on provincial governments to reconsider its laws - One of the huge debates of how the courts should interpret the constitution was the courts decision to create ‘Due Process’ o Governments should not interfere with the economic liberty of individuals o Allowed courts to impose broad philosophical opinions - Bc had a law that made it an offense to drive your vehicle if you had lost your licence o It was an absolute offence, it made you guilty whether you were aware your licence had been revoked or not - Abortion Case: o Bertha Wilson was the only judge to straight up say there was a right to abortion  Argued that only a women can truly understand what an unwanted pregnancy can truly mean o Other judges argued that it is not the courts job to invent rights, and that abortion was not even close to being in the charter, and therefore there was no creating a right for abortion October 3 rd Essay Topics - question 2 o explain why there are haters for the notwithstanding clause. Address both sides  against: purpose of bill of rights is to protect those who are vulenerable to their rights being invaded, like minorities. Why would you use a majoritarian method when the issue is minorities  in favour: checks and balances; there are checks on the governments so the notwithstanding clause is a check on the courts  Quebec signs law was good example of misuse of notwithstanding clause - Question 3 o Court has interpreted section 1 in a particular way – the government has good reasons for restricting the right, but have they gone about it in the proper manner. - Question 4 Interpretations of the Charter by the supreme court - Court had a very restrictive view of the Bill of Rights o Critiques wondered if this would change with the charter o There was a lot of reference to ‘reasonableness’ within the charter - In 5 of their first 15 cases, they declared the legislation in question unconstitutional o Court seemed anxious to distance itself from the bill of rights approach o Recognized the charter as supreme law, that it represented a new ‘yardstick’ for reconciling the individual and the state, that the court was the guardian of the charter, that the supreme court judges should be mindful that they should not longer be uncertain or ambivalent of judicial review - Governments don't like to lose under the charter because: o A loss is embarrassing because the charter is so publically popular o Fixing legislation that is contentious isn’t always easy o Losing in the past may prevent them from doing something they want to do in the future - Big M Drugmart Case - Lords day acted tested under the charter (1985) o Court acknowledged that it had been overly narrow in the earlier lords day case  In a pluralistic society, it is inappropriate for the state to give preference to the majorities religious beliefs.  Said it was a form of coercion, contrary to the spirit of the charter, and contrary to the dignity of non-Christians. That it translates Christian morals through the powers of the state into an imposition on non-Christians o Court basically strikes down the lords day act - Tone set for how the court reviews legislation o Legislative requirements for addressing rights o Government has to prove that claims are charter savy, not the individual proving they've been wronged - If the court is really strict towards the governments, it means governments will have a much more difficult time intervening and lawmaking. If the courts give the governments an easy pass, then they will begin to ignore rights and the charter. o Took the court 2 years to approach the question of limitations  2 stage approach: Oaks Test  First ask if the legislation consistent with the values of the charter and Canadian society  If it is, stage 2 asks: is it rational? Does it restrict rights minimally? Is there a proportionality between the value of the legislation and the harmful effects of the rights infringements  (hardly ever does the government lose on the first question) o October 12th - Eldridge vs BC Case o Section 15 protects different forms of discrimination, including disability o What does this mean in terms of governments duty to remove barriers? o Whether the failure of a hospital to provide sign language interpreters to patients infringes equality rights o In this case, the litigants were born deaf, and they argued that the absence of interpreters impaired their ability to communicate with doctors, risked the increase of a misdiagnosis, and could lead to incorrect treatment, violating equality o Courts ruled in favour of the deaf litigants o Court said the government had 6 months to resolve the issue - Auton Case 2004 o Infants who suffer from autism – whether BC’s failure to provide expensive behavioural treatment was an infringement of rights o 30-80 grand a year for treatment o Government acknowledges early intervention and assessment is essential for autism o must be balanced with the costs for other children with special needs o government had other programs, but rejected this particular treatment cause its so damn expensive o government ruled with the government, saying their refusal to fund it didn't interfere with equality o question was whether the healthcare was required to provide something beyond what the government has previously stated were ‘core services’ for funding  those that the Canada health act requires o the special treatment was considered non-core o the litigants used the Eldridge case for their claim  Eldridge was based on providing unequal benefits that the government provides  courts said this wasn't like Eldridge because they were seeking equality claims for something that the government does NOT provide o advocacy groups argued the court should compare the assistance it provides for autistic children vs healthy children, or for autistic children vs adults with mental illness  court said they had to compare autistic children to the treatment given to a person who doesn't suffer from autism or a person who suffers from another mental illness and a person who is receiving funding for Non-core issue - Law Case o Whether the Canada pension plan violates equality because it relies on age based distinctions for qualifying for survivor pensions o Nancy law was denied her survival benefits because she didn't meet the age criteria because she was under 35 and did not have dependent children o Supreme court ruled against her o The courts made it clear that it views equality rights in a very specific manner, that equality functions in a very specific purpose, not just difference of treatment  The purpose is really ameliorative – helpful effects for society, to address problems  Picked up on Andrews ruling – the purpose is to promote a society that all are secure in the knowledge that they are human beings equally deserving respect and consideration  Section 15 is an instrument of social reform, to make society more inclusive by combating demeaning stereotypes and hurtful discrimination  Importance of context in dealing with equality – when is how the governments treatment of you different then someone else, and whether that treatment is associated with a long historical series of injustice in the past  If the court failing to recognize the claim result in severe hardship for the individual o Court has taken a very subjective interpretation of what’s an equality violation  Critics say that the court has elevated the idea of human dignity as a cornerstone of rulings, and that that is too subjective o Difference of treatment has to result in a compromise of human dignity to justify equality ruling - 2008 Kapp case o Involved a challenge to how BC had issued fishing licences for aboriginal males o Certain first nation bands were allowed to fish exclusively for 24 hour periods o Some commercial fishers who were excluded challenged based on equality o Supreme court dismissed the argument, saying that giving it to aboriginals was consistent to the charter  Court gave far more weight to the government’s intention to ameliorate issues for historically disadvantaged people  Court does not infringe on governments passing laws to improve the lives of others even if it didn't approve them for all  The differential treatment did not infringe on the commercial fishers human dignity - Goesselin Case 2002 o Section 7 claim o 1984 economy sucks ass o Legislation of social assistance (welfare) o Legislation set a base amount, but if you were under 30, you only got about a third of what people over 30 got o Under the new scheme, unless you participated in an educational or work experience programme, if you were under 30 you only got the third  If you did, you still wouldn't get as much but youd still get more than the third o Legislation was eventually changed eventually o Gosselin said the programme violated her section 7 and section 15 rights, and she wanted the legislation ruled invalid and she wanted serious reimbursement  For a while the legislation was subject to the notwithstanding clause in quebec o Estimates of about 389 million plus interest in reimbursement o 7 judges ruled against section 7, two said it had been violated but it was reasonable on section 1 o 5 ruled that equality rights weren’t violated, but 4 said they were and it was not reasonable o Court said that the government hasn't treated young people as less worthy, and that there was nothing wrong with conditional increases because they were meant to intergrate people into the workforce o No one was being stigmatised or disadvantaged, age based distinctions are made all the time, and that we shouldn't assume that making them infringed on dignity o Section 7 claim, court left open the possibility that circumstances may change and that they may in the future recognize the issues of life, liberty, and security of the person th October 17 (Essay difference on moodle: one asks for supreme court cases to refer to, one doesn't) - Newfoundland treasury board case/ NAPE Case – 2004 o 1988, board signed an agreement regarding its female public sector employees, concern over them being underpaid o 1991government introduced public sector restraint act, differing the pay equity increases for some years and extinguish others o The net effect was taking 24million$ away from those entitled  Cost cutting measures o Freeze on public sector wages, closed hospital beds, froze student grants, laid off 2000 employees o Some of the females effects filed a grievence. Arbitration board was established, and it ordered the government to comply with its previous agreements, because it violated the charter under section 1. Government appealed o Supreme court ruled with the government  The judges could not close their eyes to the period occurrence of financial emergencies, when governments needed to juggle priorities, and that it complied with section 1 - Two huge charter advances/changes o Gay marriage o Legal system of how the police must address rights - The visibility of sexual politics has increased substantially in the last few decades - 1985 – subcommittee struck to look at equality rights impact on government and social policy o LGBT much more active in approaching this committee o Impact of lack of legal representation had huge impact on their lives  Custody agreements, legal age of consent, property laws o Committee was unanimous that big changes needed to be made – conservative chair was very moved and shocked at the significance of the issues LGBT people raised o Wanted to amend the Canadian human rights act o Change the rules of the rcmp and Canadian forces so they couldn't fire people for being gay o Change the criminal code so that the age of consent was same for gays and straights o Under Mulroney, half of the conservative caucus opposed the change  A year later the conservative opinion changed - Miron case o 5-4 decision. At issue was how the law defined ‘spouse’. The courts language was in gender neutral terms, so that all the wording would also apply to gays and lesbians o Auto insurance policies treated people differently if they were married vs common law o Litigants were denied benefits because they were common law and not married o Court was troubled not only by the disadvantage for unmarried partners, but that it effected human dignity – by being excluded, it suggested that common law marriages were less worthy and had their dignity insulted - Egan Case 1995 o Majority said equality protects human dignity, and needs to recognize each person’s moral human worth, and that they can’t be seen as second class citizens based on personal characteristics o Old age security benefits: provided an allowance for the spouse of a pensioner based on need. Egan applied for it on behalf of his same sex partner, but was denied cause he didn't meet the definition of a spouse. o Majority ruled that the opposite sex requirement violated equality, however, one of the 5 judges said that it was reasonable to restrict the right under section one  He said it was a novel idea, that governments needed time to get used to the idea of not hating on LGBT  Take that one vote off, and it gets added to the other 4 who said there was no violation  The idea of defining spouse as heterosexual was obvious and historically accepted, that it was socially and biologically normal, and that by nature marriage was heterosexual. Therefore, the definition was not invalid o For LGBT it was a mixed message; equality in theory had been violated, but one judge had switched sides by saying it was reasonable. o Governments would routinely cite Egan whenever confronted about LGBT issues - 1997 Vriend Case o new supreme court decision. There were retirements and replacements, and judges who changed their mind. o Court was tired of governments citing Egan to avoid changing laws o Mr Vriend was a laboratory coordinator at a college. College president fired him when he found out he was gay o The college was strongly religious, and was against homosexuality o Vriend went to the Alberta human rights commission, arguing that it was discrimination under the Alberta human rights act  Alberta government had deliberately refused to include sexual orientation in the human rights act o Court said that it should be in the human rights commission, and the fact that it isn’t was a violation of the charter o Couldn't throw out the whole human rights act, so they chose to ‘read in’ the act as if they had included sexual orientation o Alberta was pissed and appealed it to Alberta Court of Appeal  They sided with Alberta, the judge not really liking the charter. That it shouldn't be forced on provinces o Supreme Court overturned 8-1 in favour of the Gay rights claim o Alberta asked for time to change their ways, citing Egan  Said that the charter was only applied to what the government does, not what it doesn't do o Court said that if a government decides to create a legislation, they must do so in accordance with the charter  Said fuck you to the Egan claim for time, that it wasn't fair that discriminated groups shouldn't have to have patience for the government that had discriminated against them o Government had a public debate about using the notwithstanding clause  3 weeks earlier, they had been owned. We used to have laws that would forcefully steralize mentally handicapped people – it stopped in 1970. There were around 800 survivors in Alberta who were suing, and Alberta had a deal that if they accepted it, they could not sue for more. Government was portrayed as shutting down the rights of the vulnerable when they were using the notwithstanding clause to make sure that the people didn't re-sue.  They were gunshy around the notwithstanding clause since then - Laws based on the idea of ‘family’ were still really discriminatory o Governments new change was coming but weren’t inclined to rush it - M. V. H. Case o It was only directed at the Ontario provincial government, but its impact was felt by everyone o Applied to Ontario’s family law act: when you're in a stable relationship for a long time and it breaks down, there is a process to resolve property disagreements. The state actively promotes an accessible, lawful process for arbitration. Spouse had been defined as opposite sex o Argument was that because this law does not have account for gays, it was discriminatory and against equality o Court says it mattered what they law conveys as a message or symbol, and that this law sent a message that gays and lesbians were second class citizens, violating equality  Wasn't just that there wasn't a process for gays, but by failing to define spouse in an inclusive manner, the law had undermined the dignity of gays o Impact: conservative government was NOT happy (under Michael Harris) – the government was very clear that they were only doing it because the court was forcing them o NDP government had conceded, but by the time it got to the supreme court, government was now conservative, and they retracted the NDP concession th October 19 - Gays/lesbian rights has been huge transfer in social view o Difference becomes discrimination when it’s based on personal/individual characteristics and analogous categories - Ruling judge said the court recognized its decision could affect numerous other laws, but struck down the unequal definition anyways o Ontario premier Harris didn't agree with the ruling, but didn't agree with the notwithstanding clause either - Judges gave 6 months to fix the definition - Ottawa delayed for a long time, eventually respond in one omnibus bill changing 68 laws within 20 federal departments/agencies o Created a definition of ‘common law partner’ rather than same-sex partner/opposite sex partner o Opposition and part of the ruling liberal party wanted a guarantee that marriage would not change in this definition – the preamble in the bill committed to a ‘heterosexual understanding of marriage’ - No real legislative definition of marriage, Canada ran under a common-law from a judge in the 1880s saying marriage was heterosexual only o Gays challenged it, 3 provincial courts of appeal agreed o By 2003, LGBT could marry in BC and Ontario, and Quebec shortly after - Debate arose that how could LGBT marry in 3 provinces but not the other 7? - Halpern decision o Court changed definition of marriage effective immediately o Chretien decided not to appeal the ruling, he accepted o Ottawa was now unofficially accepting the equality claim made by LGBT - Ottawa has a reference case to the supreme court o Weird way of asking the court a hypothetical question o Paul martin takes over, really didn't want to deal with gay marriage  A roman catholic, was under a lot of pressure from the church and from members of the party to not approve the marriage change  Tries to avoid the issue for a long time - December 2004 – supreme court rules in favour of same sex marriage o Also ruled that the charter protects religious officials from being compelled to perform same sex marriages o Paul Martin asks if the government has to allow it  Court won’t answer, saying they won’t get involved in political functions because they had already accepted it when they didn't overturn Halpern ruling, so Martin can’t use a court ruling as a political excuse for allowing it - 2005 – Same sex legislation 158 - 133 o Harper as an opposition leader, campaigned on reversing that law o Tried to repeal it when he won office, and lost 175 – 123 - Lot of same sex critics in Alberta, a private member bill called the Marriage amendment act o Protects traditional marriage o Highly unlikely it would hold up under division of power, as Ottawa controls marriage o Bill passed easily o Used the notwithstanding clause even though it wasn't a charter law, so the notwithstanding clause wouldn't apply anyways o Recognized as nothing more than a political protest Freedom of expression/free speech - Section 2 – everyone has the following fundamental freedoms, o Thought o Belief o Free press o Expression - Protection against hate speech, solicitation, etc. - harm is not included as protected - what’s the relationship between speech and limits? o The broader you interpret a right, the more likely it is that legislation will conflict with it – leads to section 1 address on whether or not is a reasonable and rightfully intended compromise of rights - Dagenais o A CBC production, proported to be a fictional drama that had a very strong resemblance to an ongoing trial, the Boys of St. Vincent o Does this infringe on a publication ban? o Publication ban requested on the show for the duration of the trial, ban was given o Taken to the supreme court, who overturned the ruling October 24 th - Speech is considered to be “any attempt to convey meaning (short of violence)” - Quebec signs law case – Ford case o Quebec never agreed to the charter o Legislation that mandated that advertisements in public space had to be in French (NO other languages) – unless the government controls the language of the economy, French was at risk of losing out o This happens at the same time as Meech Lake o ‘distinct society clause’ – the entire Canadian constitution would be interpreted under this clause. It gave the provinces responsibility to promote the distinct society and protect distinct society o Would Quebec use this clause to try and undermine rights in the charter  English Canada was worried about what Quebec would od o Supreme court ruling - unilingual signs laws. Court says Quebec is violating the charter by banning the use of other languages, but were sympathetic regarding Quebec’s motive to protect French culture. However, a ban was not a minimal restriction of rights so the law was invalid under section 1. o New version of signs law said that on the outside, advertisements had to be French, but they could be English on the inside  Notwithstanding clause used pre-emptively - Tobacco advertisements case o Government requirements to put health risks and information on tobacco products o 5-4 decision o Theres no evidence that restricting advertising products will lead to a decrease in consumption, and therefore it’s not rational. Charter rights, particularly speech, are too important to restrict on ‘mere intuition’. Section 1 demands that if rights are to be restricted, there has to be a rational inference from data for that inference. o Government had info that they refused to submit, and their failure to submit it implied that the document would hinder their governments case o Rather than ban, its logical that if they just restricted lifestyle advertising, it would be preferable. o Government rewrote their legislation to focus on lifestyle advertisement - Keegstra Case 1990 o Keegstra was a highschool teacher in Alberta, and throughout the 70s-80s, the way he taught had resulted in criminal charges for teaching anti-semetic messages o Taught that Jews were oppressive, sadistic, money hungry, child killers, and that they created the holocaust to produce sympathy o Required students to replicate this and would penalize them if they didn't o He was fired and charged for willful promotion of hatred outside of private conversations  Tried, found guilty, and fined $3000. His conviction was overturned for violating freedom of expression, so it made its way to the supreme court o 5-4 ruling that free speech was violated, but it was reasonable  It was beyond dispute that the emotional damage could have grave social and psychological consequences, that hate speech can lead to degradation of human dignity and sense of belonging.  Harmful effect on society at large, that its not implausible to assume that individuals may be drawn to the cause, and thereby could create a divide in society o Hate speech is far from the justification for why speech is so important  Because its so far removed, it doesn't deserve the same government protection o October 26th - Ross Decision – 1995 o Teacher who during offtime duties published books, pamphlets, tv shows etc with ante- semetic messages o Parent complained that he was discriminating against children based on religion – because his views were well known and public, for students to be in his class knowing that was discriminatory o School board ruled that his views and works were discriminatory, and the school board was found in violation of the human rights code of NB for not dealing with punishing him o School board had to suspend him for 18 months, appoint him to a non-teaching position, fire him after 18 months if he wasn't in a non-teaching position, and fire him if he published again o This order was filed under a charter claim o Supreme court agreed that his anti-semetic comments created a poisoned atmosphere for students, that his off-duty conduct impacted the educational environment, that the school board had a duty to maintain a positive environment. Nevertheless, the order violated his freedom of expression – the content of his expression is not relevant for determining if he has a right to speech or not.  Real question was section 1 – was it a reasonable restriction?  Teachers are employees of the board, and their freedoms must be balanced against the school boards responsibilities to maintain an equitable environment. Court said it was a rational restriction for a justifiable purpose, but firing him if he published again was not a minimal restricition. They had offered him a non-teaching position, and that he shouldn't be fired if he can keep A job and not affect the school environment. Basically, they were justified in taking away his right to speech and not letting him teach, but that didn't mean they could fire him for it Pornography - Regina v Butler 1992 o Butler was charged with selling and possessing obscene materials, and for exposing it to people o Criminal code banned publication with main purpose of undue exploitation of sex, or sex with crime, cruelty, violence, horror – purpose was to avoid harm that would result from being exposed to obscene attitudes, and that it would otherwise be difficult to maintain a ‘decent’ society o Court ruled unanimously that it was a violation, but it was a justifiable restriction under section 1  It doesn’t have to have any redeeming qualities to fit under the charter  Court basically reformulated the purpose of the legislation. You had to accept a certain amount of uncomforting materials, and it’s not proper for the government to instill their standard of sexual morality in the public eye  Its not what people don't want to be exposed to that's relevant, it’s what would you want someone else to be exposed to –a community standard at large. o Court basically said you have to put up with some smut; however, if they’re degrading or dehumanising, the government can restrict that. o Court said that even if the subject consented to being in the porn, if its very degrading its still no acceptable o There was a lack of data on what degrading materials – court was deferential to the governments morality  Does parliament have a reasonable basis for believing harm will occur – if they do, then the court won’t require empirical proof - Constant cencorship of gay/lesbian porn at the border – it isn’t allowed in because it violates the reasonable standard for what counts as obscene o Little Sisters blame the court for creating such a subjective way of interpreting whats
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