Law 2101 Lecture Notes - Lecture 5: Three Steps, Affirmative Action, Ultra Vires

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14 Oct 2016
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Law 2101
Lecture 5: Charter of Rights and Freedoms
Context
o The Canadian Charter of Rights and Freedoms
1867: BNA Act (Constitution)
1948: UN Declaration of Human Rights
1960: The Canadian Bull of Rights
1982: Constitution Act
o S.52(1)
Supremacy Clause
The Constitution of Canada is the supreme law of Canada, and any law
that is inconsistent with the provision of the Constitution is, to the extent
of the inconsistency of no force or effect
o The Charter
S. 1- Reasonable Limits (Oakes Test) (Limitations)
S. 2- Fundamental Freedoms
S. 3-5: Democratic Rights
S. 6- Mobility Rights
Ss. 7-14: Legal Rights
S. 15- Equality Rights
S. 24- Enforcement
S. 32- Applies only to Government (Limitations)
S. 33 Notwithstanding Clause (Limitations)
o Limitations
Vagueness of rights
What counts as a religion?
Relationship between rights
Rights conflicting with one another
Application
Who can enforce these rights?
Some rights apply to everyone, some rights apply to every
individual, and every citizen
o Enforcement
Who
Fundamental Rights, Legality Rights and Enforcement
Charter: Defendant will always be the government
What
Invalidating Legislation
o Remove the infringing parts of the legislation
o No force or effect
Interpretive remedies
o Narrowing constricting the language
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o Schachter
S. 52
Benefits were only applied to mothers for newborn babies
Dad said it as’t fai o eual teatet of the la
Three Questions
Extent of inconsistency
Severance/Reading in (Appropriate?)
Temporarily Suspending
S. 24
Whatever the court thinks are appropriate or just
(1) Remedies Declarations/ Injunctions / Damages
(2) Exclusion of evidence
S. 2(b): Freedom of Expression
o Fundamental Freedoms and includes other fundamental freedoms (Religion)
o Everyone has the following freedoms:
Freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication
o What does Epessio ea?
Advertising to children
Irwin Toy v. Quebec (Attorney General) (1989)
Charter did not exist when it first became a problem
Conveys or attempts to convey a meaning
Three reasons for protecting
Truth seeking as an inherent good
Participation in social and political decision-making
Cultivating diversity and human flourishing
S. 15 Equality
o Every individual is equal before and under the law and has the right to the equal
protection ad equal benefit of the law without discrimination and in particular,
without discrimination based on race, national, or ethnic origin, Colour, religion,
sex, age, or mental or physical disability
o Key Terms
Discrimination: Direct or Indirect
Indirect: disproportionately negative impact
Sometimes there is no intention to not give people an opportunity
with indirect discrimination
o Section 15(2) enables governments to pro-actively combat discrimination
Per Kapp- if government can demonstrate ameliorative purpose, no need
to consider
Program has an ameliorative or remedial purpose
Program targets a disadvantaged group identified by enumerated
or analogous grounds
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o Analogous Grounds
A personal characteristic that is immutable or changeably only at
unacceptable cost to personal identity
Citizenship
Martial status
Sexual orientation
o Test for s. 15(1)
Does the law create a distinction based on an enumerated or analogous
ground?
Does the distinction create a disadvantage by perpetuating prejudice or
stereotyping?
Discriminatory effect
o Perpetuating prejudice or disadvantage
o Based on a stereotype
Not all differential treatment is discriminatory
Case Examples
o 1989- Federal government enacts Tobacco Products Control Act
Prohibited advertisement of tobacco products and other activities to
encourage their sale and regulated labelling requiring health messages
Tobacco companies challenged constitutional validity
Ultra vires Parliament
Violates s. 2(b) of Charter: Freedom of Expression
o 1991- Quebec Superior Court finds Act ultra vires Parliament and that it
contravened the Charter
Federal government appeals
o 1993- Quebec Court of Appeal
Unanimously held Act was not ultra vires Parliament (POGG- Peace Order
and Good Government)
Infringes section 2(b) of the Charter, but was justified under section 1
(Applied to Oakes test)
Tobacco companies appealed
o 1995- Supreme Court of Canada
7:2 Valid in terms of power
Multiple judgment, with some dissents
Infra vires means within the jurisdiction
Jurisdiction: Act infra views criminal law power
Can be used to address public health evils
Tobacco is the public health evil
S. 2(b)
Court agreed that labelling requirements violated s. 2(b)
Right to say nothing or right not say certain things
Can it be saved by s.1?
Was’t a iial ipaiet
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