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PHIL 2080 Constitutional Law Complete

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Department
Philosophy
Course
Philosophy 2080
Professor
James Hildebrand
Semester
Winter

Description
1 Constitutional Law - Constitutional Law: A body of law that prescribes the extent and the limits of state authority. Show the values of the nation. - Conventions: Unwritten rules, which are an element of Constitutional law even though strictly speaking they are not laws. There is a presumption that conventions will be obeyed, since if this is not done there are often political repercussions. An example of a convention is the office and powers of the PM. Conventions have no statutory definition or law describing definition of the prime minister. Lots of things we do are not written down. A convention is not a legal rule, not a law. It’s the way things have always been done over time - much just like a law. Not to be enforced by courts. Describe how legal powers are used. If royal assent with held would have been political response, so conventions usually obeyed. If queen said no, we would make effort to change law. Convention might be used in court to interpret laws. Conventions are created: (a) by agreement, or by usage over time, (b) by recognition of parties over time that they are bound to follow the usage, or practice, (c) that there is a reason for the practice - Charter of Rights and Freedoms (1982): A Body of Law describes limits and exercises of the power of the state- definition of constitutional law- Documents, case law, conventions. Examples of limits, extent of powers of authority of state. - Notwithstanding Clause: If a body of government wants to pass legislation that is unconstitutional, they can do so in spite of the violation by relying on s. 33. These laws need to be revisited after 5 years, with this time limit existing because if legislation openly goes against the Charter, then they need to see if it withstands opposition after a number of years. An example of use of this clause was for Bill 101; the French only sign laws that existed in Quebec. Section 33 dilutes the power of charter to some degree b/c governments can opt out of charter when they go to sec 33. Doesn’t imply every section of charter, however. - Supreme Law: This refers to the Constitution and Charter, saying that all laws have to be consistent with them. S. 52 states that any laws inconsistent with the supreme law ‘have no force and effect’. Charter says that charter of rights ands freedom is supreme law of Canada. Any conflict between any other statues of law, charter will govern. It’s trump card. It is entrenched. It can be only changed by amending formula. - Entrenched: Stuck. This means that entrenched laws cannot be changed by ordinary legislation, rather only according to amending formula in the Charter, which requires 7/10 provinces representing 2/3 of the population. This formula basically shows us how unlikely it is that the Constitution will be changed. - Ultra Vires: Outside (power) jurisdiction. This term is usually used referring to s. 91 and s. 92 of the Constitution Act, 1867, to say that if either order of government makes a law that is ‘ultra vires’ then it is unconstitutional. Whether or not the legislator is outside the power of the legislature that made the law. 2 - Doctrine of Paramountcy: Federal legislation will prevail (over provincial) where two properly enacted laws conflict or contradict each other. - Doctrine of Parliamentary Sovereignty/Supremacy: The notion that Parliament can make any law it wants. This flies in the face of the fact that the Constitution is the ‘Supreme Law’, which really gives the judiciary the highest decision. ⋅ Parliamentary supremacy is a positivist, conservative notion, which was very prevalent in Canada until 1982. It basically means that the sovereign could make any law that the sovereign wanted. ⋅ This goes against the current state of Charter litigation which challenges government’s rights to make laws. - Judicial Activism: This is the opposite of Parliamentary Supremacy and basically means that courts are making laws, over stepping their bounds, by challenging the constitutionality of laws. Ideally, they’re not supposed to be legislators. - Traditional activism: we have the Supreme Court of Canada, judges are appointed to jobs, they cannot be elected or removed for decisions that they make. They’re not immune from the popularity of politics. If the government passes law we don’t like, we get rid of them. We feel empowered, part of process. Judges are not bounded by limitations. Retirement age 75- Mandatory, come back supernumerary- Hired back on. Cannot be removed from office for decisions they make - The positivist idea is that the judiciary shouldn’t interfere with making laws because they are not elected, can’t really be kicked out, and may not really represent the people. Evolution of Law in Canada - Our government system comes from England. BNA Act-1867, it prescribed the rules of government how to govern Canada, it is an act of British parliament. Set out authority of the provincial and Federal governments. Sec 91 and sec 92. Sec 91- Federal, Sec 92- Provincial powers. The British North America Act (BNA Act) of 1867 was the act for the governance of the colony of Canada. This Act set out the powers or the executive, legislature, and judiciary in Canada, and was the first constitutional document. At this point, only the British government could change the powers because there was no amending clause permitting the Canadian government to do so. - Until 1949, the highest court in Canada was still the Privy Council in England. - Regarding the division of powers, s. 91 outlines the federal powers (e.g. criminal law) and s. 92 outlines the provincial ones (e.g. property and civil rights). This division is not an exhaustive list of all powers, for example, the powers of the Prime Minister were left out. - Before 1982, a lot of constitutional law dealt with the division of powers. For example, the provincial government tried to argue that gun registration and regulation was not under federal jurisdiction, as it involved property, which was under provincial jurisdiction (Note: they lost) 3 - The repatriation of the constitution took place in 1982 under PM Trudeau, so that Canada would no longer need to go to England for their royal ascent on everything (i.e. which was basically just ceremonial, i.e. a ‘rubber stamp’). - Before implementing the new constitution, a legal case went before the Supreme Court of Canada to decide on to questions. First, did Trudeau and the federal government need consent from all the provinces by law? Second, was it required by convention? - The SCC ruled that there was no law requiring Trudeau to get consent from all the provinces, however they believed that convention did exist. Since conventions are unwritten rules, which are treated like laws (i.e. if disobeyed there are often political repercussions, and thus they are generally obeyed as if they are law) this was all a political disaster for Trudeau because he was worried about what would happen if he didn’t get consent from all the provinces. - There were conferences with the federal government and the provinces and the only way Trudeau was able to get agreement was by agreeing to s. 33, the ‘notwithstanding clause’, i.e. in spite of. - The Charter is a constitutional Bill of Rights. Before 1982, the Bill of Rights that existed was only federal legislation, and thus could be changed. Constitution- Trudeau want to make laws from Canada, British had to give approval, but no authority to change constitution. Finally 1982 got constitutional documents. Canada Act- 1982, Act of British parliament. Absolves Br. Parliament of any legislative power Canada and grants Canada sole right to make own laws. Britain relinquishes its authority. The same act adopts an amending formula, and a charter of Rights and Freedoms. Charter of rights and freedom, seven provinces, and fifty percent of the population have to agree in order to amend the constitution. The Constitution Act incorporates the BNA act, but renames it the constitution act 1867 – this done in 1982 as well – includes the charter of rights and freedoms Have judicial review- The courts and federal appointed judge, having inherited jurisdiction, our courts can consider any part of law. Court made decisions that limit the authority of government officials and legislation. So constitutional law doesn’t refer to any document in particular it just limits the powers of state. 4 Ron Correli v. Duplessis - Facts: o In the 1950s Jehovah’s witnesses were being harassed by the law for handing out pamphlets – Duplessis’s government was a Roman Catholic majority and rather conservative o Duplessis’s want all of them arrested and brags about it too. But Correlli, a restaurant owner goes to the prisons and pays their bail – he’s a bondsuran o In retaliation Duplessis orders the Liquor board to revoke Corelli’s license. Duplessis brags about this too, hard to prove though. Nevertheless, Corelli Sues - Issue: o Does Duplessis have the right to revoke the license for no reason? o Rule of Law  idea that we’re governed by a series of over-excluding principles, and law itself seems to suggest no limits on when the superintendent can revoke a license o We have to see what the liquor license statue says about the powers that made that decision. If you look at it, no restriction on that persons power to revoke, or suspend liquor license. cx The Supreme Court holds that the superintendent can only act within the purpose of the legislation – which is to regulate alcohol – he was acting “ultra vires” – beyond his authority Absolute power to that official- Positivists believe in black letter law, that says well that’s the law and it’s okay with me. But the Supreme Court says that doesn’t fit, in our law, there is no such thing as an absolute discretion, because there’s nothing specific. Let’s step back, what’s purpose of liquor licensing act? This is for regulated sale and distribution of liquor. That decision made from Duplessis to put someone out of business, who was bailing people of out prison for handing pamphlets. That was abuse of discretion. Looking at the purpose approach, there’s no such thing as unfettered discretion. Law can’t be arbitrary. So Corelli wins b/c of an abuse of power. Supreme Court of Canada makes decision about the limits of government’s authority. So the constitution does do things- Limits power of person, and power of legislations- Legislation is an act of state. State makes laws. Court can define and interpret that ability to make laws, prior to charter. Good example of rule of Law- Everybody is bound by law. Law itself cannot be arbitrary- law equally applied to everyone- Natural Law approach. Can you argue the positivist approach? Court says No- USE NATURAL LAW APROACH. We never see absolute discretion…that would be arbitrary. 5 Case: R. v. Drybones • Facts: - Drybones, an Indian, is charged according to section 94(b) of the federal Indian Act, which states that if Indians are found intoxicated off the reserve then they are subject to imprisonment. - At trial, Drybones is convicted. - Drybones appeals for a new case (de novo) and is then acquitted of the charge. - The Crown appeals and the appeal court affirms the decision. So, the Crown appeals again to the SCC. • Issues: * Note: This case takes place BEFORE the CHARTER * - Should we differentiate between individuals based on race with respect to those being charged with intoxication? - Can this charge stand despite infringing on the Canadian Bill of Rights? - Does the SCC have the ability to throw out this statute? - SCC: tries to figure out if this Bill of Rights allows the SCC to strike down federal law • Decision: Section 94(b) is inoperative, so the appeal is dismissed. • Majority Judicial Reasoning (Ritchie) - By reason of race, Indians are being denied “equality before the law” and “protection by the law”. - S. 94(b) infringes on the aforementioned rights. - This is a serious attack on Parliamentary Sovereignty, which is held up in the Gonzales case in BC - Law is inoperative unless expressly declared by an Act of Parliament, in which case it would be able to operate notwithstanding the Bill of Rights. - SCC can now throw out legislation (i.e. judicial activism), based on a precedent which says that the courts can strike down any unconstitutional law. • Minority Judicial Reasoning (Cartwright & Pigeon) - Act is plain and clear in wording; no rule gives it any meaning. - Did parliament give court to declare law in operative? - Cartwright says it’s plain and clear, no rule can give it other meaning, did parliament intend give power to declare law inoperative? - He doesn’t think they did. Only leg can do this. - They believe that the Court is overstepping their bounds • Dissenting Opinion - Believes that the Federal government has exclusive power over Indians - As Indians, if majority is right, can’t have Indian Act because it treats them differently. But can treat differently if doesn’t take human rights. - Argues that the Bill is an interpretive tool - Words according to dissent are only rules of construction. 6 - There’s a presumption against implicit alteration of the law. Believer in positivism, courts don’t have right to alter existing statutory law. Our job is to do proper effect of law as in acted. - It’s a radical departure of British law making majority decision. We can’t find clear indication that bill of rights is supposed to override general principle to enforce rule of court over government. o Because of this case there’s tension between the conservative view between parliamentary sovereignty and natural law – philosophical – o The Canadian Bill of Rights is broadly worded and is a precursor to the Canadian Charter of Rights and Freedoms o It express power by government to limit their own authority, it’s a natural law approach. Concern about traditional activism o This case heavily influences wording and concepts behind the charter o E.g. Inoperative laws, if they conflict with Bill of Rights, they include allowance for a “not withstanding clause” o This case shows the court taking on a wide role as an interpreter of law 7 Essay: Two Models of Judicial Decision Making (1968) - This essay was written well before times of the Charter. It was written at a time when the courts were very conservative. - Trudeau wanted to have an entrenched Bill of Rights and the question is whether giving the courts the ability to use it to get rid of legislation would be a problem, i.e. if we give the Supreme Court of Canada awesome powers, i.e. ‘super legislation’. - We all have to have a shared consensus about the authority and legitimacy of the courts because we believe in rule of law. - It compares our understanding of the judicial system in courts, with the new model if we were to pass a law to entrench the Bill of Rights - The two models of judicial decision making are described as follows: A) Adjudication of Dispute (as it was then) B) New Model of Policy Making o Components of the Adjudication Model (i.e. before 1982): 1) Settlement of Disputes – this encompasses how cases get to court and how the judge figures out the results. 2) Adversary Process – 2 parties present cases against each other and impartial judge decides. 3) Established Standards – Substantive laws and legal processes which judges rely on. - Note: Judges DO NOT have power of enactment (i.e. passing legislation), rather they have to use existing legislation to make their decisions. o New Model - What if judges were policy makers, i.e. political actors like legislatures? ⋅ They will be directed by special interest groups ⋅ If a judge has a policy objective he/she may not be able to wait for litigants to come to him/her. Also, if litigants do come the specific case may become less important to the judge relative to that judge’s policy objective. ⋅ Law clerks have a huge impact on what happens at the SCC. ⋅ Legislatures won’t have final say when there is a conflict. ⋅ Judges new role will put pressure on the old model. ⋅ Adversary is A verses B. We the think system works, we think A and B both get competent lawyers. ⋅ It’s not up to the court or the judge to find the truth. The Court is impartial, and unbiased. This is how we describe the court system. ⋅ What does this new model mean? ⋅ Anything in common with old model? We have standards that have to be met. When court makes decision to limit to which what has been brought to court. ⋅ Important Feature- standards in adjudication model, judges don’t have the power of enactment. They only decide things on particular people and things they know. Apply legal rules that already exist. Some degree of creativity, law does change. How it presents itself particular dispute particular problem, still rely on body of law as they know it ⋅ Main problem: Does our system fit the model or does the model undermine the legitimacy of the courts, i.e. by using it this way does it dilute our laws? If we are 8 going to make the judiciary a ‘super-legislation’ then do we need to make changes, i.e. make judges accountable? ⋅ Policy making court would mean that the supreme court becomes a super legislature, supreme court of Canada, can do something like enacting legislation, even if don’t enact legislation, they take legislation that’s out there saying that parts no good. ⋅ Morgantaller- decision this law is no good, but legislation: if you enact law like this will let it stand. Supreme Court tells legislation what to do. Shift in model of court. Charter of rights and freedoms can’t make laws against treaty rights. We expect people we elect in leg to be bias. We want them to think like we do that’s why we elect them. We want them to pass laws; we’re the majority – and that’s why we elect them. We don’t expect judges to be bias, but impartial. So now judges are doing something elected officials to do, but they’re not elected. We can’t touch them, can’t affect them. Should they be elected if they’re making social policy? There’s the rub. ⋅ Traditional model settles disputes between individual persons; they make decisions to settle case, and to abandon case. When Policy making is a project, the individual becomes secondary to political agenda. Surprise to people in social policy arena. They forget that they are here to serve clients. ⋅ That’s a problem, take adjudication model and expand because it has implications for everyone. Show how things got to court and use it to determine its outcome. ⋅ Can be a conflict of interest: This model is contradictory to policy making agenda. Help people who don’t have money to take things to top. It’s not an easy project. Interveners help, but don’t pick case just to help, you have to have right political agenda for them to get involve. With interveners which have political objectives. Then there is standing. Standing in a court proceeding, a party who has particular interest in a case. If involved, court will allow you to permit evidence. In essay, the notion of standing that have to be involved is going to be eroded, as the agenda expands and becomes more political. More people will get involved, standing will diminish. Move away from adjudication model, do we lose legitimacy, is it dishonest, to give a new project which different from original function? ⋅ Inconsistent with majority rule as political power, and our notions of democratic society, if Supreme Court makes enacting decision. ⋅ People complain about judges taking to much power. When court steps over traditional line, the court is the final arbiter. Argument against fears. ⋅ Arguments: In Canada judges aren’t accountable, traditional activism just part of process 9 ⋅ Another argument: because adversary process that limits and constrains judicial making the court must preserve its power and prestige as an institution, and this will make it conservative. ⋅ But in cases see court not concerned about being conservative to save prestige. ⋅ TAKE NOTE: Two oppose functions of adjudication model, and policy making model (social policy actions, rather than what happens to the participants – greater goods – also rejects legislation and takes it on itself). Is it appropriate for court to erode these functions? Remember article written well before the charter 10 Case: Reference Re: Section 94(2) B.C. Motor Vehicles Act • Current Law (s.94 of the B.C. Motor Vehicles Act): A person who drives while prohibited from driving or with a suspended license is absolutely liable, i.e. with no defence and is automatically subject to imprisonment. o Fundamental Justice – refers to the basic principles and tenants recognized by common law, international conventions, etc. Basically, it refers to the basic components of our legal system, such as ‘due process’, ‘innocent until proven guilty’, and not only the “rules of natural justice”. o Procedural v. Substantive Law: - Procedural - how you get it (e.g. what you have to do to sue) - Substantive - what you get (e.g. whether or not you have a case) - so if you’re suing in contract law: what you’re suing for is under contract law, so it’s substantial, how you go about suing, i.e. going to the court, affidavit, etc, is procedural • Respondent (challenging the law): - The respondent is questioning s.94(2) of the Motor Vehicles Act and arguing that this law has the potential to convict a person who really hasn’t done anything wrong, and give that person jail time. Basically, it is being argued that absolute liability and imprisonment cannot be combined. - It is being argued that this section violates s.7 of the Charter, which lays out the ‘right not be deprived of one’s life, liberty and security of the person, when that is done in breach of the principles of fundamental justice’ - BC motor vehicles make it mandatory to go to jail if you’re driving while under suspension – regardless if you know or not – that’s the problem. This is an absolute liability offense. It’s a very early charter case; reference is about whether or not this law is inconsistent with the charter – someone took on this case to find out if was constitutional or not - They are arguing that fundamental justice includes both procedural and substantive laws. - Does court have authority to toss out law of no force and affect. One of the complaints about this project of declaring legislation of no force and affect is that the court does not have the authority, but Supreme Court says they do • Appellant – Attorney General (Supporting the law): - The appellant is arguing that the law should survive for the sake of administrative expediency. - The Attorney General also raised an argument of judicial activism, saying that the courts (which are unelected) should not have the job of changing legislation. This argument is immediately thrown out as the courts respond that the electorate democratically made the Charter and thus people basically gave the courts this power. - The Attorney General argues that the principles of fundamental justice refers to natural justice so can’t just throw out legislation, because all you get is procedural guarantees of trial, impartial judge, etc. 11 - On the issue of Procedural vs. Substantive - the crown is relying on the basis that charter of rights and freedoms is not substantive, it doesn’t give you that power – like the Drybones case – it’s just for interpreting – that’s what they’re saying – you have no authority to create substantial rights with the charter – it’s procedural only - Crown argues that all the charter gives you is the authority to make sure there is a procedural guarantee of natural justice. - Crown got some evidence to support notion that it was procedural only, lets talk to the people who drafted the legislation and see what they meant when “said principle of fundamental justice” - But court said they’re just civil servants it doesn’t matter what they say. - They decided for themselves what parliament had decided for them – sort of dishonest! They choose for themselves substantial authority – brings up debate of judicial activism – decides extent of own authority, chooses big authority, substantive authority - The crown argues that the charter does not give you the power to throw out legislation and say things are of no force and affect, they say it’s only procedural – but the court says otherwise • Judicial Reasoning: - The notion that innocent people should not be punished is a major principle and thus in a case like this, absolute liability offends the principles of fundamental justice (which is determined not to be only natural justice). - Court says, what we mean by the principle of fundamental justice, if we read the charter in its entirety, it’s broad and ambitious, and looks as if the charter gives us substantive rights, not procedural (like innocent before proven guilty) substantive rights mean we get to turn over legislation. Court says get substantive rights. Procedural: Natural Justice – administrative law term, it’s entirely a procedural concept, it means that whenever there is an official act that affects you, you’re entitled to know the case against you, opportunity to answer to that case against you, and to be heard by an impartial arbiter. - In terms of being sent to jail, absolute liability should not apply, i.e. one should always be able to defend him/herself. - Imprisonment obviously deprives one of his/her liberty, and thus violates s. 7 of the Charter. - According to this case any possible jail sentence combined with absolute liability will violate section 7 - In terms of determining if this violation is a ‘reasonable limit’, i.e. if it can be justified under s.1, the objective is to get rid of bad drivers, but putting innocent people in jail still doesn’t make sense, so it is not justifiable. - Absolute liability is ok for things like parking tickets, but not when jail time is involved. - This law should involve strict liability thus enabling a person to argue his/her case. • Decision: Section 94(2) is not consistent with the Charter and the legislation should be tossed. 12 Case: R. v. Oakes • Facts: - Oakes was charged with possession of a narcotic under section 8 – narcotics control act – the section requires that once the crown proves you are in possession of a narcotic, regardless of the quantity, the onus falls on the accused that it was not for the purpose of trafficking - at this time the penalties for trafficking were much more severe than simple possession - Oakes brings a suit claiming that s.8 violates s.11(d) of the Charter, i.e. the right to be presumed innocent until proven guilty. - At trial, Oakes is found guilty. At the Court of Appeal his appeal is accepted. The Crown appeals to the SCC. • Issue: The issue here is does section 8 violate section 11d of the charter, and if it does can it be saved under section 1? • Decision: Appeal Dismissed (i.e. Oakes wins and the law is thrown out). o Categories of Presumptions: o We have a mandatory rebuttal-able presumption with a basic fact. 1. Without a basic fact, so the law presumes something (ex. Innocence – a legal presumption without a basic fact until proved otherwise). This one is a rebuttal with a basic fact. You had possession of narcotics. Then there is a lawful presumption you were trafficking. Rebuttubal- person can disprove.  Without basic facts OR With basic facts  Mandatory or Permissive (i.e. with certain set of facts have to/may presume)  Rebuttable or Irrebuttable - Presumed innocence is rebuttable with the onus on the Crown to disprove. There are three ways to rebut: 1. Accused raises reasonable doubt 2. Evidentiary burden 3. Legal burden to prove on balance of probabilities • Judicial Reasoning: - Although this law only makes the accused prove innocence on a balance of probabilities, it still makes the accused prove innocence and thus it violates s. 11(d). It is a fairly obvious violation. - What about section 1, i.e. can the government justify this violation as a “reasonable limit”? 13 This case gives rise to the “Oakes Test”, i.e. whenever you find a violation the government has the opportunity to prove that the violation is “reasonable and demonstrably justified in a free and democratic society” according to s.1, based on two criteria:  Pressing and Substantial Objective – If when passing the law the government is doing so in order to accomplish something very important, then it is ok. Basically, need to look at the purpose of the law. Usually this is a low hurdle to meet.  Proportionality Test – Is the violation proportional to the objective? 3 parts to determine. If “yes” to all (and to “pressing and substantial objective”, then reasonable violation and the law will stand: a) Is there a Rational connection (between the legislation - what it does and what is it trying to accomplish) b) Does the action impair the right as little as possible c) Do the negative effects of the law outweigh the benefit (if the law is not proportionate to the benefits, then law is deemed unconstitutional) - In this case, the government is worried about narcotics (i.e. “YES” to “Pressing and Substantial Objective”) but regarding the “Proportionality Test”, there is no rational connection to the objective because possession of a small or negligible quantity of narcotics does not support the inference of trafficking. So, it is unnecessary to consider the rest of the “Oakes Test”, and based on this, s.8 of the Narcotics Act is not a reasonable violation on s. 11(d), and thus it must be thrown out. - In this particular case it fails the rational connection – we don’t want people addicted to drugs, but if you find someone with a few seeds, we don’t want them going to jail – so it’s not rationally connected. In making social policy, the negative effects of law can’t outweigh benefit. 14 Case: Ford v. Quebec • Facts: - A number of businesses were charged with violating the Quebec provincial statute requiring public signs to be in the French language only. - Issues are quite simple – main ones are section 58 and 69 of the Quebec of charter of the French language. Section 58 says that French only signs in Quebec, and section 69 says any name of a company has to be in French form - The business firms challenged the validity of the provincial statute on the basis that it violated section 2(b) of the Charter, i.e. Freedom of Expression. - Ford won at trial and at appeal. Quebec is appealing. • Background to laws: - Note: s.58 of the Charter of the French Language deals with French only signs, and s.69 deals with French only names of companies. - S.3 of the Quebec Charter of Human Rights and Freedoms (QCHRF) is like s.2(b) of the Charter, in terms of content, i.e. dealing with Freedom of expression. The only difference is that s.2 (b) is entrenched and is a federal statute, while s.3 is provincial legislation which in effect can be changed. - S.9.1 of the QCHRF is like s.1 of the Charter. - Quebec legislators passed an omnibus bill which is (omni meaning all) all laws that we pass from now on or that we’ve passed will be exempt or affected in a certain way – in this case an omnibus bill which invoked section 33 of the CCRF, from now on, all laws that we (Quebec) pass are except from sections the charter of rights and freedoms (2 and 7-15). It’s omnibus b/c we know how section 33 ordinarily works, every time you pass a new law, you have you have to put a clause saying that it operates notwithstanding (name section of charter you know it violates) the omnibus way saves paper, it covers all the laws, all will be exempt from the charter of rights and freedoms. Question whether or not the invoking of section 33 saves 58 and 69 • Issues: - Should we distinguish between political and personal freedom of expression? - Should commercial expression be protected under “freedom of expression”? - They challenged their fine in court on the basis that the Quebec charter of the French language violated their other rights that were guaranteed both by the Quebec charter of human rights and freedoms and the charter of rights and freedoms of Canada. Question is whether they successfully used section 33 – the notwithstanding clause – to exempt their language charter from the application of the freedom of expression from our charter. • Attorney General (Supporting the law): - One argument - The omnibus had been successfully attacked in Quebec, because rights and freedoms are so important, you have to name each one, each particular right, and this legislation is not particular enough. The Supreme Court of Canada says we don’t buy that, that part of the argument is wrong, omnibus legislation is a legitimate way to do it and you can’t always predict how a law will be affected. So 15 omnibus legislation should be ok, it’s not always clear before you pass legislation how it will affect the charter. So the omnibus bill is good enough to exempt section 58 - Quebec attorney general in trying to argue the validity of section 58 and 69 saying that it should be okay to have French language only on French signs, they had a number of arguments to support that position: - First: you should distinguish between the message and the medium, freedom of expression is about the message and not the medium and they’re calling the medium the language. Not so important to restrict language b/c the message is more important. Freedom of expression, you can say what you want and mean what you want, but you just have to do it in French. This is the important, guaranteed right, whereas the language is not guaranteed - Second: the Attorney General claims that in Quebec they have specific prescribed language rights, and thus since they are specifically prescribed by statute, they must be limited to only what the statute says (i.e. since says French only, means that). So in Quebec, in all our legislation we’ve made specific laws with regard to language, and that’s the specific laws we have. So you can’t argue a general language right in section 3, since we already have specific, and since section 3 says nothing about language, that’s their argument - Third: the Attorney general tries to argue that this issue is just commercial advertising so it is not a big deal regarding Freedom of expression, i.e. because it is just advertising. We already provided specifically for language right in the Quebec charter for the French language, so you can’t argue something general. - Fourth: If you allow section 3, freedom of expression, to be interpreted as a freedom to use English or other language, then you’re in direct contraction and you undermine everything they’re trying to accomplish with the charter of the French language. It directly contradicts the other legislative initiatives that are trying to protect the French language. • Decision: Appeal dismissed, i.e. the statute violates s. 2(b) and must be thrown out • Judicial Reasoning: - Court deals with these three arguments, to say that as far as separating the medium from their meaning, the language from the content, that just doesn’t work, b/c there’s a very important relationship between language and content, the medium is the message, and what more compelling argument can you have? Whole Quebec culture is based on the French language. So that previous arguments undermines itself - As for saying we’ve provided for French language rights, there’s a difference between rights and freedoms. Rights are things that government owes you. You have a right to language access (services in both official languages). Freedoms are different, they’re more broadly worded, and they’re entirely consistent with our legal approach to say that certainly you can have a right to speak any language under the freedom of expression. A Specific described right does not mean you don’t have a broad undefined freedom. Language rights do not in anyway affect the freedom of expression. He also says, they’re advertisements, and they’re not so important – that’s the attorney general’s arguments – scope of freedom of expression should be decided by thinking of the kind of charter values we’re trying 16 to protect. Commercial expression is not so important. In the US, they’re constitution protects commercial expression, but it’s different than our constitution. We do not have a right to property in our charter of rights and freedoms. Argument made here is that we don’t refer to a right to property. When the SCC of Canada rejected the right to strike, like a commercial expression it would not serve the same values that would justify its protection on the constitution. When we decide what to protect in freedom of expression, we can’t confine to specific kinds of protection (Note: This is from the Irwin Toy case where it was determined that Freedom of Expression protects anything that conveys a meaning or is meant to convey a meaning.) - So, s.58 violates s.3 of the QCHRF and s.69 violates both s.3 of the QCHRF and s.2 (b) of the Charter. - It can’t be saved under s.1 (Charter for s. 69)/s.9.1 (QCHRF for both s.58 and s.69)?  Pressing and Substantial Objective: There is a pressing and substantial objective of preserving the French culture (of which language is a large component)  Proportionality Test:  There is a rational connection  There is NOT a minimal impairment of the right by dealing with it in this fashion, and thus it is not proportional. - It is not a minimal impairment, as in order to preserve the French culture could just make French dominant. rd The rest of the judgment deals quite expressively with the 3 argument. You violate a freedom. What’s the objective by passing a law like the Quebec language of the French charter – they’re trying to protect their culture. Court says there is a rational connection between the laws and their objective, but the problem for the attorney general is that they have not proven that the exclusive use of the French language is necessary to achieve that objective and they do not minimally impair the right b/c if you made a law to require French to be prominent language, you’d achieve the same end. The argument that Freedom of expression contradicts what we’re trying to accomplish by French only, the court does not buy into that saying that it would more accurately reflect the real picture of Quebec as it is if you only require French to be the dominant language. Section 58 violates section 3 and is not saved under section 9.1. Remember section 33 worked for section 58. Section 69 violates section 3 and section 2b and is not saved by 9.1 or 1 in the CCRF. 17 Case: R. v. Big M Drug Mart Ltd. • Facts: - Respondent operates drug store in Alberta, and challenges the constitutionally of an act to stay open on Sunday – lord days act – says you cannot transact business on the lords day effective from 1907 - Big M is charged and loses. On appeal Big M wins. • Issue: - Does the Lords Day Act infringe on the freedom of conscious and religion in the charter, and if it does, is it then justified by section one? o Note: There are two possible ways to characterize the Lord’s Day Act: 1) Religious perspective – securing the public observance of Christianity 2) Secular perspective – providing a uniform day for rest from labour • Attorney General (Supporting the law): - The attorney general concedes that the act does have a religious purpose. He says all we need to worry about, however, is what its effect is – purpose is not that big of a deal – and court says both purpose and effect are important - As well, the Attorney General attempts to argue that since Canada doesn’t have an establishment clause, like the U.S. does, i.e. saying that government cannot make laws favouring one religion, thus it should be allowed. Note: The Court immediately rejects this, saying not to look at the U.S. Constitution. - Basically, the Attorney General is saying that the infringement is justified because need a day of rest and Sunday is the most practical. • Decision: Appeal dismissed and law thrown out. • Judicial Reasoning: - Legislative aims and objectives have to be consistent with charter values. We know that if there was such a law to enforce a state religion it would be of no force and effect. - So if the stated purpose of this act is to observe the Christian Sabbath, it would therefore be unconstitutional and of no force and effect. The minimal effects would not save such a law, b/c the effects test – {remember the section 1 stuff – what’s the objective, pressing and substantial, and if it’s important, then we see if its effects are proportional to it’s objective} – we don’t have to go to do the proportionally test, because we cannot get of the gate as far as the its stated purpose is concerned - We don’t need to talk about its effects if its purpose violates the charter - Basically, since the purpose of the Lord’s Day Act offends Freedom of Religion, the effects (of providing rest) can’t save it. - Charter safeguards minorities from the “Tyranny of the Majority”, i.e. from being coerced into believing or doing/not doing something based on the religion of the majority. - Favoring one religion over another one is destructive over the religious freedom of the collectively 18 - People of other faiths have the right to work on Sunday, which is not their Sabbath. The Lord’s Day Act coerces non-Christians into not working on Sundays. - Section 27 of the charter embraces multiculturalism unlike the Lord’s Day act. - Purpose of section 2a (freedom of conscious and religion) is clear – the manifestation of non-belief is just as important as belief – you’re free not to believe in anything. - Government can’t make people observe a religious practice for a sectarian purpose. - By charging a business for being open is using the criminal wing of law – people should not be charged criminally. The court comes to the conclusion that the true purpose of the act is to compel the observance of the Christian Sabbath. - Is this a reasonable limit? The attorney general tries to argue that this is just a uniform day of rest, convenience of common day of rest, necessary for health to have day of rest – they bring in social science evidence not to be a workaholic. - The attorney general wants to argue the secondary purpose of the act as a day of rest – they say using the day observed by the majorities by far outweigh the most practical way of doing it – court rejects this argument of practicality – it’s a secular justification – the courts had never held that lord’s day act was held for a secular purpose – it was always held for religious purpose – by finding the act has a purpose which is religious we don’t have to figure out if its effects allow us to justify it – its unconstitutional by its stated objective. - No opportunity to discuss its effect if its purpose is unconstitutional. 19 Case: Jones v. R. • Facts: - The appellant is a pastor of a religion and he home schools his children. If you want to come school your children all you have to do in Alberta is apply for certification, and inspector comes to your house and asks questions about your curriculum – as long as it’s consistent with guidelines with province standards you can go ahead with it. Mr. Jones had objection to having to ask province - Mr. Jones not happy that he has to ask for state permission – I don’t take orders from the state, I take them from God. You’re asking me to subvert the authority from god, and make the authority of the state more important, violating my convictions – that’s what he says – violating his religion – argues 2a like above, and section 7, liberty. - He’s charged under the Alberta school act (says you have to go school above age 6 and under age 16). He refused to apply and negotiate and the government would not come and inspect unless he asked them to – so you have a standoff here. They’re not really compelling him; they’re compelling the appellant’s children. • Issues: - The constitutional question here is whether the school act violates his freedom of expression or section 7 * Note: Jones acknowledges that important objective of requiring a certain level of education, by providing good secular education, thus all he really is saying is that the action of having to ask for the certification is the violation. • Decision: Jones loses and the Act remains. • Judicial Reasoning: - The freedom of religious argument: the court wants to look at the purpose of the school act – regulate the education of the young, it was a secular goal, no religious purpose. If the effect of the school act is to interfere with religious practice then it would violate section 2a of the charter. - In this case both the purpose and effect are relevant in trying to decide the constitutionality of this law. The appellant says acknowledging the authority of the state is inconsistent with his religious convictions. If he’s sincere about his belief, then certainly the school act has some purpose about his religious belief. We’re not in a position, says the court, to question the validity of his religious beliefs, so we wont make a ruling – wont deal with that issue. - But the court can question the sincerity of the belief when it’s relied on to get someone out of a law. - The Supreme Court says lets presume that that really is his religious conviction. The state also has a compelling interest in the education of children. So it does infringe the right (by allowing the validity of the belief). Now, is it justified? - Must look at purpose and effect: The purpose of the enactment of the Act was to regulate the education of young people in the province, i.e. a secular purpose, so ok. Regarding the effect, we must presume that his beliefs are real, i.e. we can’t 20 question his beliefs, and so if the effect violates his religion then there is a violation of his Freedom of religion. - Can this violation (i.e. the Act) be justified? YES!  Pressing and Substantial Objective: There is a compelling and important interest and objective by the government to regulate chi
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