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Chapter 4

Law 2101 Chapter 4: Chapter 4

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Law 2101
Mysty Sybil Clapton

Tuesday, October 4, 2016 The Canadian Charter of Rights and Freedoms Constitution Constitution and the charter are to be interpreted as broad fashion, unlike statutes ‣ where you're trying to find the intent in a word or phrase Constitution is a different document than ordinary laws and demands different • reasoning approaches • Charter in particular — the general approach is to interpret it broadly and interpret exceptions to it in a narrow and precise fashion ‣ Constitutions are meant to be hardly changed and because it is the foundation of every law we have in every country it is meant to be written in a general yet progressive fashion ‣ Quasi Constitution Act:* • Second level of the pyramid of legislations • like private constitution What is the Charter? They wanted a Charter just like the US and Europe ‣ • They wanted it because issues of human rights could not be protected in the courts before • Pierre Trudeau big advocate of the Charter Wanted to make a Bill of Rights after winning the election in 1980 He played on of the leading rolls in beating the Quebec Referendum groups Initially provinces did not want to have a Charter — they thought it would be a power grab ๏ But Trudeau was winning the war of public opinion ‣ So the provinces against Trudeau were being pushed back 1 Tuesday, October 4, 2016 ๏ Provinces wanted a Not Withstanding Clause — where they could opt out and ignore the constitution whenever they wanted to — Trudeau said no and in the end they ended up finding a middle ground ‣ They would be able to put their own law as s33 (the notwithstanding clause) into the Charter for 5 years and after that they would have to renew it again - so they were able to exempt themselves from any constitution No one has used the s33 for 25 years because of the fear of negative public reaction that would vote them out if they did anything as the public is not a fan of the province or government immunizingreC C a particular law that they have placed ‣ A statement of individual and collective rights and freedoms ‣ Part of the Canadian Constitution (Constitution Act 1982) ‣ What does constitutional status mean? The 1982 Constitutional Revolution Three Major Constitutional Changes 1. Patriated British North America Act from UK parliament, and renamed it • Constitution Act, 1867 Also decided that UK could no longer adopt any measures that would affect Canadian Constitution Was now Canada’s alone 2. Created formal constitutional amending formula for the first time (ss. 38-49 of • Constitution Act 1982) 3. Created and entrenched bill of rights into Canadian Constitution (Charter of • Rights and Freedoms)* For the first time, Canadians could claim fundamental rights in the courts Significantly increased powers of Canadian judiciary Canada was charged a Constitutional Superpower (highly influential country among other national courts) 2 Tuesday, October 4, 2016 Section 52 ‣ (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is to the extent of the inconsistency, of no force or effect • Means that we changed from being a parliamentary democracy to a constitutional democracy • S52 gave greatly enhanced powers to the courts of Canada, ultimately SCC , to be able to strike down legislation — prior to this SCC could strike down legislation only if federal law or provincial law passed something that was actually supposed to be the others law so we greatly expanded the power of the courts What Does it Mean to have a Charter Right? ‣ Rights create protected zones for people to act, free of unjustified state interference ‣ Where there is a right, there is a correlative duty on state to respect the right • Any state actor has a constitutional obligation to respect that right • Charter is a living tree - grows and evolves within its natural limits ‣ Some rights may require the state to take action to secure the benefit of the right What sorts of rights does the Charter protect? ‣ Civil and political rights Largely negative in orientation — ie, they limit the exercise of state power ‣ • Means that people have certain rights that the government or state cannot take away ‣ Economic and social rights are not specifically protected What rights does the Charter Protect* ‣ Rights are grouped under various headings: • Guarantee and Justification (s. 1) 3 Tuesday, October 4, 2016 • Fundamental Freedoms (s.2) • Democratic rights (ss. 3-5) right to be able to vote • Mobility rights (s. 6) Move anywhere within the country • Legal rights (s. 7-14) • Equality rights (s. 15) Official Language rights (ss. 16-22) • • Minority Education rights (s. 23) • Enforcement (s. 24) General (ss. 25-34) • s27 protects multicultural s33 notwithstanding clause s32 to whom does the charter apply? Aboriginal rights Which of these rights does the Charter protect? A right to property ‣ ‣ A right to education ‣ A right to healthcare ‣ How do you tell if a right is protected by the Charter? ‣ What does it mean if a right is not Protected by the Charter? Who is bound by the Charter? The Charter applies to Parliament and government of Canada, and legislatures and ‣ governments of the provinces (s. 32)* 4 Tuesday, October 4, 2016 ‣ ie, Charter applies to legislatures and executive branches of government, federally and provincially ‣ State Actor - Charter applies to state actors but not public actors* Charter applies not only to the state in a technical sense, but to emanations of the ‣ state — agencies, boards, commissions, tribunals etc ‣ Applies to all levels of government including municipal governments ‣ 1. Government for purposes of s. 32 By its very nature or the degree of government control over it • • If entity is considered government, all of its activities are covered by the Charter even if same activity would be considered private if performed by private body • University is a public actor and charter does not apply to them, hospitals are public actors and are not deemed to be state actors 2. Non-Government parties performing government actions are bound by the Charter ‣ but only in regard to those actions • Eg. implementation of a specific statutory scheme or government program by private agency Eldridge v. British Columbia, SCC (1997)* ‣ Deaf medical patients in BC communicate with their physicians through sign language, with interpreters ‣ BC government had paid for interprets, but discontinued service, citing costs — in effect, sign interpretation service downloaded to hospitals ‣ Two Charters Questions: • Does Charter apply to Hospital, via s. 32? 7yy6 k, • Does s. 15 (equality) protect the claimants? ‣ Stoffman v. Vancouver General Hospital (SCC, 1990) had found that hospitals were not per se a state actor and therefore Charter does not apply ‣ But here, BC government (to whom the Charter applies) had downloaded specific + necessary government program to private entity 5 Tuesday, October 4, 2016 ‣ SCC: Charter applies • Went on to say that Eldridges right to equality of not being discriminated was there ‣ ‘Governments should not be allowed to evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities’ Who is Not bound by the Charter? ‣ Private individuals ie, employers, neighbours, landlords, etc • • Does not apply to those between two people — only against the government and the Charter ‣ Corporations, even though created by legislation and regulated by the state • Unless you are dealing with a law or statute McKinney v. University of Guelph, SCC (1990)* ‣ University professors required to retire at age 65 — challenged university’s mandatory retirement policy, using s. 15 of Charter ‣ Issue: Was university a ‘state actor’ to whom Charter applied? SCC: No ‣ ‣ While universities (and hospitals) are statutory bodies performing public service, and largely funded by state, they are not part of the government ‣ Both legally autonomous: own governing bodies, manages own funds, make independent decisions on operations Different with community colleges: (Douglas College, SCC 1990) ‣ • More government control over board of governors, less operating discretion, established as Crown agency — therefore Charter applies ‣ University was not controlled as much as community colleges, just received funds and such - same with hospital 6 Tuesday, October 4, 2016 Review ‣ Pay attention to the sections that are gone through in class for the Charter (1 and 7 this class and S32 last class like the McKinney case and S33, maybe 24 and 52) • School boards are said to be State Charters (elected trustees) • CBC is in between • Bus Transit is said to be state charters Because their operations are almost entirely funded by government, board of electors employed by the government and they're also kept under control by them ‣ S33 allows provincial or federal government to say that they can override something and no one can challenge the constitutionality of this piece of legislation no one has used it in two decades • How do Courts Interpret Rights? (2nd half) ‣ Constitutions are fundamentally different from ordinary legislation • Constitutions are written in general language Makes the wisdom and temperament of judges much more important ‣ Written in general rather than specific language Designed to endure ‣ ‣ Difficult to change • More permanent place in our legal system Problems in Interpreting the Charter ‣ Vagueness of rights language • Judges have temperament, insight and understanding to read the Charter in certain ways ‣ Vagueness necessary to get agreement to adopt Charter 7 Tuesday, October 4, 2016 ‣ Charter rights are not in any clear or automatic way ‣ Originalism • Form of constitutional interpretation - no place in Canada Judges refuse it in our system • • Originalism look at what the original writers of the Charter meant when they wrote it • Big in America Conservative approach to reading the constitution • ‣ Living Tree • This is what we use in Canada Came from a famous case in 1921 • • Known as Person’s case • Woman received the vote in Canada after WW1 and by next election first woman was elected in member of parliament — then question came if woman could be appointed to the senate and government said you had to be a man of property in order to be appointed to the senate 5 woman took it to the Judicial Committee of the Privy Council ๏ They said in the past it could have been that woman could not serve in the senate but were not originalists, we take a living tree approach to a constitution — it grows and changes and adapts within its natural limits and were not interested in a 1867 interpretation but a 1929 interpretation ‣ Said woman are people and are entitled to be in the senate It works because you have to let the constitution to adopt to modern time within its • natural limits Judicial Duty Judges must set aside person values and decide cases on impartial assessment ‣ • Put aside personal biases But judge will think murder is wrong and thats not a bias 8 Tuesday, October 4, 2016 ‣ Must consider evidence and argument before them ‣ Judges are constrained by precedent but must exercise discretionary judgment Progressive Interpretation The Charter is a ‘Living Tree’, capable of growth and expansion within its natural ‣ limits ‣ Can adapt to address situations not contemplated when it was written ‣ Original understanding of those who drafted it, or original meaning of its terms, is not determinative of how it should be understood Purposive Interpretation * General Interpretation* Section 7 ‣ Three leading sections of the Charter in terms of rights that are frequently litigated in the courts are S2 (fundamental freedoms), S15 (Equality rights), S7 (life, liberty and security of a person) S7 Protects procedural rights of a person and includes substantive rights as well* ‣ ‣ SCC says it has meaning and content ‣ Principles of Fundamental Justice:** Has there been a violation to life, liberty, security of the person except if its • accordance with the principles of fundamental justice 1. Statute must not be overly vague 2. A law must not be arbitrary 3. A law must not be grossly disproportionate • In Morgan II Abortion case SCC said that Abortion law would violate security of the person that did not want to carry the fetus the full term 9 Tuesday, October 4, 2016 Evidence that went in showed that laws about Abortion was being applied in a bad way (law must not be arbitrary) ๏ Court said that laws are supposed to be applied evenly and fairly across the country — evidence showed that it was applied unevenly Reference BC Motor Vehicle Act, SCC (1985)* Immediate issue: Could the BC Motor vehicle act require automatic fining and • jailing of driver for driving without license, even on first offence? • Larger issue; Does S7 protect only procedural rights, or also substantive rights? • Procedural: right to fair + impartial hearing, right to give + challenge evidence, right to notice etc • Substantive: right to laws + legal system that protects such rights as life (no capital punishment), liberty ( no jail-time without justification), and security of person (freedom from arbitrary government action) • SCC: Section 7 protective substantive + procedural rights • Struck down offending part of Act ‘A mandatory term of imprisonment for an offence committed unknowingly.. is • grossly excessive..’ Carter v. Canada, SCC (2015)* Q: Did Criminal Code prohibition on physician-assisted suicide (PAS) violate s. 7? • • Plaintiff, suffering from ALS, petitions court to strike down s. 241 of CC • SCC had previously ruled (5:4) in 1993 in Rodriguez that s241 not a violation • 22 years later, SCC rules (9:0) that s 241 is in violation Since 1993, facts have changed (# of countries and US states which allow PAS) • and law has changed (wider interpretation of s7) • If purpose of s241 is to protect vulnerable from taking their lives in time of weakness, then a blanket prohibition not necessary to meet his objective • Remedy: Strike down s241, suspend declaration of invalidity for 12 months to allow Canadian government to find Charter-compliant amendment 10 Tuesday, October 4, 2016 • Carter: Modern example of purposive and generous interpretation of Charter • Got a Dr to assist her to die and he was never found out Rights and Limits on Rights — S. 1* ‣ Guarantees the rights and freedom to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society ‣ Interpretation of rights does not necessarily determine the protection they provide Charters rights and freedoms are subject to s. 1, which allows establishment of limits ‣ on rights so long as they are considered reasonable ‣ The protection ultimately afforded by a right depends on s. 1 ‣ Charter analysis a two-step test: • (i) Has there been a breach of a Charter right (ie s. 2, 7, 15)? • (ii) If yes, can the government justify the breach under s. 1? ‣ Every time the court finds there is a violation of your rights, the government still has an ability to state that it is justified in section 1 R. v. Oakes (1986, SCC) * Facts: Mr. Oakes (a London resident) charged with possession of hash oil for the ‣ purposes of trafficking under NCA ‣ NCA contained a ‘reverse onus’ provision: if suspect caught with over a certain amount of narcotics, onus shifts to suspect to prove narcotics were not for purposes of trafficking; rather, only for personal use • He was seen as trafficking unless he proved himself to not be under S.1 ‣ Ordinarily, Crown bears the onus in Criminal matters: • ‘beyond a reasonable doubt’ ‣ Mr. Oakes challenges constitutionality of ‘reverse-onus’ provision in NCA under s. 11(d) of Charter, which guarantees innocence unless proven guilty • Meaning that disproving that he was innocent violated the fact that he was innocent until proven guilty 11 Tuesday, October 4, 2016 First case where the court had to figure out what the meaning of S. 1 would be and ‣ how it would happen in the court SCC: creates a 4 part proportionality test to assess a government justification • for a Charter breach 1. Is the objective of the legislation ‘pressing and substantial’ 2. If so, is the limit ‘rationally connected’ to objective? 3. If so, does limitation impair the right ‘as little as reasonably possible’? 4. If so, is the loss of the right proportional to the benefit Most important step is #3; minimal impairment step ๏ Government lost to Oakes in the second step , but they mainly lose in the third step if they are going to lose at all ๏ Third way means that is the way chosen by the government impairs your rights in as little way as possible Oakes test is a framework, not a science ‣ Mr. Oakes established that NCA violated s. 11(d) of the Charter Government of Canada then argued that, notwithstanding the violation, provision ‣ justified under s. 1, by dampening drug t
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