Table of Contents

Categorization of Federalism................................................................................................................3Issue #1: Are the 2 statutes at issue valid?................................................................................................3Issue #2: Applicability – does the statute apply to this defendant/claimant?............................................3

Ontario (AG) v Winner (1954) * Bus crosses prov. boundaries GRANTED IJI...................................5Tessier Ltee v Quebec (2012) – Crane company, stevedoringNOT GRANTED IJI......................................5Bell Canada v Quebec (Bell #2) 1988 SCC – “affects”, not “impairs” GRANTED IJI..................................6IJI vs. Pith + Substance “cores” of heads of power..................................................................................7Ordon Estate v Grail, 1998 SCC—NEW VERSION of IJI NOT GRANTED IJI................................................7Canadian Western Bank v Alberta 2007 must “impair”; prov. IJI IJI NOT GRANTED............................7Canada v. PHS Community Services Society, 2011 SCC Prov IJI claim unsuccessful.................................8Marine Services International Ltd. v. Ryan Estate 2013 SCC Test for IJI, IJI unsuccessful.......................9

Issue #3: Operability – if it applies in two jurisdictions, which is paramount?..........................................10Alberta (Attorney General) v.Moloney 467.................................................................................................10Rogers Communications Inc. v. Chateauguay, 2016 SCC............................................................................11

Charter Procedure..............................................................................................................................121. Charter applicability: When is the Charter available?..........................................................................12

RWDSU v. Dolphin Delivery[1986] SCC – court orders not subject to Charter...........................................13Grant v Torstar, 2009 SCC balance of rights, Charter applies to common law indirectly b/c of s.52.....14McKinney v. University of Guelph, [1990] SCC Universities not gov’t entities, control test.................14Eldridge v. British Columbia (Attorney General), [1997] SCC sign language, is hospital gov’t?............15Godbout v Longueuil (City) 1997 SCC municipalities are gov’t entities and subject to Charter.............15

2. Justification of limiting a Charter right under s.1.................................................................................16R. v. Oakes, [1986] SCC...............................................................................................................................17R. v. Nova Scotia Pharmaceuticals, [1992] SCC vagueness.....................................................................17Newfoundland (Treasury Board) v. (N.A.P.E.), 2004 SCC --.........................................................................18Dore v. Barreau du Quebec, 2012 SCC........................................................................................................19

3. Remedies............................................................................................................................................20Schachter v Canada (1992) * Charter/Constitutional Remedies overview.................................................22Vriend v Alberta (1998) ** Applies Schachter, clarifies reading in for legislative intent............................23R v Ferguson (2008) * S 52 remedy, mandatory minimum sentences........................................................24Vancouver v Ward (2010) ** CREATES FRAMEWORK FOR AWARD OF DAMAGES UNDER S 24(1)............24R v Conway (2010) * Test for determining if a tribunal can order s 24 remedies.......................................25

Freedom of Expression (s.2(b))..........................................................................................................26Irwin Toy v Quebec (AG) (1989) * Definition of Expression * Basic Test....................................................27R v Butler (1992) * “Core” of freedom of expression.................................................................................29City of Montreal (2005) * location test – infringement justified as on public street..................................30R v Bryan (2007) * How much evidence is needed to show infringement? Political Expression................30Baier v Alberta (2007) * Positive claim rights.............................................................................................31BC Freedom of Information and Privacy Association v. AGBC, 2017 SCC...................................................32Greater Vancouver Transit Authority ** EXCELLENT CASE FOR REVIEW...................................................33

2: Freedom of Conscience and Religion..............................................................................................34R v Big M Drug Mart (SCC) 1985 - MEANING OF FREEDOM.......................................................................35Syndicat Northwest v Amselem 2004 SCC..................................................................................................36Multani v. Commission Scolaire Marguerite -Bourgeoys, 2006 SCC...........................................................37Alberta v Hutterian Brethren of Wilson Colony (2009) -- PROPORTIONALITY............................................37Loyola High School v. Quebec, 2015 SCC....................................................................................................38MLQ v Quebec 2015 - INCLUDES ATHEISTS................................................................................................39

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FEDERAL – SECTION 91 PROVINCIAL – SECTION 92(1A) Public Debt and Property(2) Regulation of Trade and Commerce(2A) Unemployment Insurance(3) Raising of Money by any Mode or System of Taxation(4) The borrowing of Money on the Public Credit(5) Postal Service(6) The Census and Statistics(7) Militia, Military and Naval Service, and Defence(8) The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.(9) Beacons, Buoys, Lighthouses, and Sable Island.(10) Navigation and Shipping.92(10) exceptions:

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province

*Must be transportation or communication across boundariesAeronautics is NOT this, its POGG

(b) Lines of Steam Ships between the Province and any British or Foreign Country:

(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

(11) Quarantine and the Establishment and Maintenance of Marine Hospitals(12) Sea Coast and Inland Fisheries(13) Ferries between a Province and any British or Foreign Country or between Two Provinces(14) Currency and Coinage(15) Banking, Incorporation of Banks, and the Issue of Paper Money(16) Savings Banks(17) Weights and Measures(18) Bills of Exchange and Promissory Notes(19) Interest(20) Legal Tender(21) Bankruptcy and Insolvency(22) Patents of Invention and Discovery(23) Copyrights(24) Indian, and Lands reserved for the Indians(25) Naturalization and Aliens(26) Marriage and Divorce(27) Criminal Law (28) The Establishment, Maintenance, and Management of Penitentiaries.(29) Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces

(2) Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes(3) The borrowing of Money on the sole Credit of the Province(4) The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers(5) The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon(6) The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.(7) The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals(8) Municipal Institutions in the Province(9) Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes(10) Local Works and Undertakings (other than…(11) The Incorporation of Companies with Provincial Objects(12) The Solemnization of Marriage in the Province(13) Property and Civil Rights in the Province(14) The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts(15) The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.(16) Generally all Matters of a merely local or private Nature in the Province.92A. (1) Provincial power over: (a) non-renewable natural resources in the province, (b) development, conservation and management of non-renewable natural resources and forestry resources in the province; (c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.S.93: Education power to provinces, minus some qualifications for denominational schoolsS.94a: old age pensionss.95: Concurrent powers over agriculture

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Categorization of Federalism 1) Validity - Statutes have to be valid – Relationship of the statute that is challenged to Constitution Act 1867

Did the govt have the authorization to enact that statute? 2) Applicability—IJI: Statutes have to apply in the circumstances.

Do they both apply? 3) Operability – Paramountcy: Valid prov. law and valid fed. law Is there a conflict? Is the statute operable? Sequence – Order of constitutional doctrines: validityoperabilityapplicability (CWB)

Issue #1: Are the 2 statutes at issue valid? It is now well established that the resolution of a case involving the constitutionality of leg. in relation to the

division of powers must always begin with an analysis of the "pith and substance" of the impugned leg. (CWB)1. Outline what the pith and substance is P+S=object + effect (Ref re Firearms)

a. What is the purpose of the law? What evil is aimed at? RJR (tobacco), AHRA (human cloning) Legislative history, preamble, intent of legislation

b. What are the effects of the law? Legal effects? How does the statute look to work? Actual effect? Only relevant if it’s been in operation, how has it worked? Morgentaler

c. What was the motive of government? Colourability? (RJR) Does the law look valid, but government actually has ulterior motive? (Colourability)

o If it was there purpose, they would…. Consider - speed, press releases, timing of events, extrinsic evidence

2. Put the pith and substance into a head of provincial or federal powera. S. 91? S. 92? b. POGG – residual power Russell (umbrella), Local Prohibition Case (residual)

i. National Concern Zellerbachii. Emergency Fort Frances

c. Criminal Law 91(27)i. Prohibition + Penalty + Purpose RJR, ARHA, Dairy

d. Trade & Commerce 91(2)i. International and Interprovincial Trade

ii. General Regulation of Trade Affecting the Whole Dominion If P+S is ultra vires: do not need to go to Applicability or Operability (Rogers) – municipal by law (“notice of reserve”) was found to be leg. in relation to P+S, of radiocommunications, area of exclusive fed. power INVALID

Issue #2: Applicability – does the statute apply to this defendant/claimant?Applicability: used in a number of ways 1) Statutory interpretation: whether statute applies to this situation? (BC Freedom of Info. And Privacy Access) 2) Extraterritoriality: validity of a prov. statute in terms of territorial limitations, and applicability (Unifund) 3) IJI: prov. statute does not apply b/c of interjurisdictional immunity

Interjurisdictional Immunity (IJI) —judicial creation in John Deere Plow, 1915 IJI: Certain fed entities have limited immunity from the application of certain parts of prov. laws Created in John Deere Plow case (1915): However, federal entities cannot claim absolute immunity from the application of all provincial laws. Degree of IJI which a federal entity can claim has changed over the years, as has the test for IJI. It was very

narrow, then broad, and now narrow again Edge: IJI cases have always been confused Edge: Remember, SCC does NOT LIKE IJI, creates vacuums of power. In real life, IJI is only a last resort.

CWB says use paramountcy first one could argue that it should be modified as it is judicially created

IJI Process

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Question 1: Identify a federal entity OR federal head of power Winner Either/or work/undertaking…read disjunctively, only needs to be one to invoke IJI Winner

a) LISTED IN S. 91 or 92(10) Banks, Indians, Post office, RCMP railway, steamships, canals, telegraphs, aeronautics, etc.

b) FEDERAL WORKS (s.92(10)(c)) Physical thing that crosses borders (EX: bridge, building, terminal elevator) Winner

c) FEDERAL UNDERTAKINGS (s.92(10)(c)) Arrangement under which physical things are used that crosses borders

o Winner’s bus line crossing provincial/international boarders = federal undertakingo Interprovincial aspect must be regular and continuous—think of colourability, can’t call yourself

fed. just for benefitsd) DERIVATIVE IMMUNITY (Tessier): when prov. work is an integral part of OR necessarily incidental to a fed. undertaking (prov. but does some things for inter-prov undertaking) ex. hotels not integral to railways CPR

a) when the services provided to the federal undertaking form a significant/principal part of the related provincial work’s activities OR

o providing regular services is not enough if only minor part of operations must be vital to fed. b) when the services provided to the fed. undertaking are performed by employees who form a functionally

discrete unit that can be constitutionally characterized separately from the rest of the related operationo must represent a significant amount of employee’s time and primarily perform work related to

fed.EXAM STRATEGY: Argue federal work/undertaking, then alternate argument of derivative immunity

Question 2—Test for Immunitya) Identify the vital and essential parts of the fed. entity OR the unassailable CORE

Legislation must touch on the VITAL & ESSENTIAL part of the entity (Absolutely indispensible or necessary element)

o EX: wages, working conditions and internal management and operations Bell, prov. stevedoring NOT essential to federal shipping companies Tessier, crossing of borders for fed undertaking Winner, hotels NOT essential to railways CPROR:

Touch on the CORE of the head of power (Ordon) Edge: no aids here, must be creative and argueo Ex. insurance is not core of banking (91(15)) (CWB), maritime negligence law at core of

navigation and shipping (91(10)) Ordon, Marine Services, siting antenna systems at core of federal power of radio communications Rogers

o Must not be so broad that it occupies the whole of a head of power. b) Persuade court that application of the prov. statute will impair an essential part of the fed. entity

There must be an:o Impairment to the vital and essential part of the entity (CWB)—affect is not enough

ORo IMPAIRMENT to the unassailable core of the head of power (Ordon)

Will have to address concerns from PHS: No precedence Difficulty of defining core (especially w/double aspect matters) Danger of legal vacuum

If IJI applies, provincial statute should be read down where inapplicable, not struck down entirely. Edinger : Court moving towards new test—Even when there was a fed. entity, they used fed head of power ( Rogers ) Provincial version of IJI: May, if desperate, manage to persuade court to recognize it no PRECEDENTS (CWB)

o Original version: 1) identify prov. entity; 2) application of fed statute will impair vital and essential parts of prov. entities

o New version: 1) find core of prov. head of power; 2) say that application of fed law will impair the core

Only case to make it to SCC about provincial IJI is PHS –prov. health power was not impaired by failure to provide CDSA exemption

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Ontario (AG) v Winner (1954) * Bus crosses prov. boundaries GRANTED IJIFacts: Conflict between federal jurisdiction and provincial (NB) jurisdiction. Winner lived in USA and operated a bus business from Boston to NB/Nova Scotia. At trial, SMT requests injunction that would stop D from “embussing or debussing” in New Brunswick. SMT just wants to get rid of a competitor. Under provincial statute, NB would not have let Winner embuss and debuss in the province - significant negative effect on business.

Issue: Should Winner’s bus company be granted IJI? Does IJI require a work AND an undertaking or work OR undertaking? Decision: for Winner—Prov. actions was incursion on Fed undertaking

Ratio: An inter-provincial work is a federal entity. Inter-provincial part of the work must be regular and continuous.

o A company can colourably disguise itself as a fed. entity by making trips across borders. Court considers the proportion and nature of the cross-border business to determine if it is a colourable attempt to appear as a federal work or undertaking. If not colourable, it is a fed work/ undertaking

Work=physical thing (bridge, building, terminal elevator); undertaking=an arrangement (ex. business, business plan, anything they have done to put it in motion) under which physical things are used (ex. busses)

o Words should be read disjunctively work OR undertaking

Reasons: Connection b/t provincial roads is an “undertaking”, while roads themselves are “works”

o Winner had an interprovincial undertaking b/c it crossed borders Province has authority over own roads, but cannot interfere with connected federal undertakings Pith and substance of prov. act is interprovincial transport (fed. undertaking), not just road control

Tessier Ltee v Quebec (2012) – Crane company, stevedoringNOT GRANTED IJIFacts: P is a company that rents out cranes and provides crane-related services. Parent company argues that

stevedoring falls under shipping (federal) and company should therefore not be subject to high (provincial) CSST rates under Act respecting occupational health and safety. Only 14% of their revenue comes from stevedoring - but that work potentially falls under s 91(10) - shipping and navigation.

o Stevedoring Reference: firm engaged in stevedoring is a fed. entity, closely connected with 91(10) Navigation and Shipping IF the work they do is integral to the fed. shipping companies they serve)

Issue: whether Tessier is provincial or federal for purpose of Occupational health and safety?

Decision: Ruling for Quebec, dismiss appeal from Tessier. Prov. occupational health/safety rules apply

Ratio Employment is under federal jurisdiction (apply IJI) if:

o 1) direct federal labour jurisdiction: the nature of the work is federal—relates to work, undertaking or business within leg. authority/head of power of parliament

For direct jurisdiction, it is sufficient that only a minor part of the undertaking is interprovincial as long as its performed on a regular basis (Winner)

o 2) Indirect/derivative jurisdiction: when prov. work is an integral part of or necessarily incidental to a fed undertaking (relationship b/t prov work and fed. undertaking)

a) work itself is provincial, but does some things for inter-provincial operation OR b) derivative jurisdiction does not include exceptional aspects of a business - the federal

undertaking must be a significant/principal aspect of the provincial business. OR c) the services provided to the fed. undertaking are performed by employees who form a

discrete unit that can be constitutionally characterized separately from the rest of the related operation

If thing/work/business is entirely within the province: (derivative jurisdiction)1. Look at the operation that is at the core of the federal undertaking being argued.2. Look at the particular subsidiary operation engaged in by the employees in question.

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3. Assess whether the effective performance of the federal undertaking was VITAL to the services provided by the related operation

o Providing regular/important services is not enough if only minor part of operationso Even if vital, if it represents an insignificant part of employee’s time/minor aspect not federalo Only if its dominant character is integral to a federal undertaking will a local work or undertaking

be federally regulated; otherwise, jurisdiction remains with the province

Reasons Tessier’s stevedoring activities formed a relatively minor part of its overall operations which were local in

nature and the stevedoring employees were integrated with its other activities and did not form a functionally discrete unit.

Note on “necessarily incidental” 1948 Canadian Pacific Railway case: did not want to be subject to prov statute (hours of work act) CPR built hotels in major towns throughout Canada, including Empress Hotel in Victoria Question was: whether Empress Hotel in Victoria could claim IJI from application of prov. statute?

o Issue: whether Empress is part of CPR? SCC: found that they were separate operations. Hotels were not necessarily incidental to railways.

People would stay at hotel if railway didn’t exist, people would use railway without hotel. They were run as separate operations and businesses. Therefore, prov. statute applies b/c it is not necessarily incidental to a fed work or undertaking

Note: Importance of classification of a thing as a federal work or undertaking or provincial

Bell Canada v Quebec (Bell #2) 1988 SCC – “affects”, not “impairs” GRANTED IJIFacts: Involves a pregnant employee of Bell Canada who applied for protective re-assignment under the relevant provisions of the QC Act respecting occupational health and safety,. Bell Canada challenged the protective re-assignment application on the basis that the QC Minimum wage act and Act respecting occupational health and safety did not apply to a federal undertaking. Bell is a fed undertaking.

Issue: What are vital and essential parts of this undertaking? Wages and working conditions are vital.

Holding: for Bell—The working conditions and management of a federal undertaking fall within exclusive fed. jurisdiction. Because QC’s Act affects a vital part of that undertaking, it must be read down so as not to apply to federal undertaking. Appeal dismissed.

Ratio:  Valid provincial laws of general application can apply to a federal work or undertaking, UNLESS the application of these laws would affect the VITAL or ESSENTIAL elements of these undertakings, without necessarily going so far as to “impair or paralyze it”

Reasoning (Beetz):  Management, regulating wages and working conditions are an essential and vital part of a fed undertaking

and feds have jurisdiction over labour relations of fed undertakings, therefore prov. labour relations cannot apply because it would affect/impair fed essential element

o Once determined something is a fed undertaking – feds control labour relations, this affects management, which is a vital element

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IJI vs. Pith + Substance “cores” of heads of powerOrdon Estate v Grail – pre-decessor to CWB in terms of cores of heads of powers The court creates a whole new version of inter-jurisdictional immunity; Where a provincial statute trenches on an exclusively federal power, the statute must be read down so as not to

apply to those situations; says this is known as inter-jurisdictional immunity Court finds that each federal head of power possesses a basic minimum unassailable content (the core) Edinger feels that IJI, as it has been expanded, is inconsistent with the pith and substance doctrine

o P+S=Once a matter of the statute is found to fall under a legislating govt’s head of power, then incidental effects on other heads of power are constitutionally irrelevant

o IJI interpreted with cores of heads of power, and measuring the “effects” of legislation on the core is inconsistent with the P+S doctrine – Edinger’s opinion on the matter

Ordon Estate v Grail, 1998 SCC—NEW VERSION of IJI NOT GRANTED IJIFacts: there were two boating accidents causing death on Lakes in Ontario. Private leisure boats (not fed works and undertakings), however, anything that floats is navigation (91(10)). Therefore, case involves maritime law (governed by Canada Shipping Act=Fed Statute). Plaintiffs were relatives of people who died and wanted to supplement CSA by application of some valid Ontario statutes (Family Law Act, Trustee Act, Contributory Negligence Act) to fill in gaps of CSA

Issues: Can prov. statutes apply to a cause of action otherwise governed by maritime law?

Decision: Prov statutes do not apply—maritime (negligence) law is an essential core of parliament’s power over shipping and navigation (91(10)—must be uniform and can not be supplemented

Ratio IJI available for federal heads of power - do NOT need to identify federal entity.

o Each head of power has a basic, minimum and unassailable content which the provinces are not permitted to regulate directly or indirectly through valid laws of general application

o Immunity against incidental effects that affect the CORE of the head of power – even if the pith and substance is within jurisdiction, if there are incidental effects, it is inapplicable.

o If it does, it must be read down so as to not apply to those situations This is IJI Incidental effects that do not go to the “core” of the head of power are okay Carnation

Reasons Canadian maritime law is an essential part/core of 91(10) Navigation and Shipping

o Must be uniform due to int’l obligations, and shouldn’t be supplemented by Prov Statutes the application of a provincial statute of general application would have the effect of regulating indirectly

(altering) an issue of maritime negligence law, which is an intrusion upon the unassailable core of federal maritime law and, as such, it is constitutionally impermissible

Conflicting provincial statutes would unacceptably complicate maritime law, as Canada must also abide by international treaty obligations in international waters - would lead to non-uniformity.

Canadian Western Bank v Alberta 2007 must “impair”; prov. IJI IJI NOT GRANTEDFacts: P (federal entity) argued that they were not subject to provincial (AB) insurance act because they wanted to sell insurance - banks are under federal jurisdiction. They contend that the insurance is central to their operations. But provincial legislation dealing with insurance and contracts are valid provincial matter under property and civil rights (Citizens Insurance). Bank was already regulated under fed Bank Act which allowed sale of insurance. P argues BOTH IJI and paramountcy

Issue: Can Alberta leg. apply to banks which are federal undertakings? Is insurance “banking”?

Decision: For Alberta. IJI fails because insurance not at the core of banking (91(15)). Paramountcy does not apply: no equivalent fed law about insurance banks subject to prov. statute

Ratio:

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In the absence of impairment of core of head of power, interjurisdictional immunity does not apply.o Impairs=implies adverse effects/consequences; affects=does not imply consequenceso Impairment must go to vital/essential part of undertaking or head of power for IJI to applyo Vital=essential to existence; absolutely necessary; crucial

In theory, doctrines of IJI and paramountcy are reciprocal ie. available to provincial heads of power and provincial regulated works/undertakings to protect from fed encroachment.

o In practice, strongly favors federal immunity at expense of prov. leg. (para 35)

Limitations on IJI Must impair core of head of power or vital and essential part of work/undertaking IJI should be reserved for matters already covered by precedent

o IJI’s natural area of operation is in relation to those heads of legislative authority that confer on Parliament power over enumerated federal things, people, works or undertakings

If a case can be resolved by application of P+S or federal paramountcy, that approach would be preferable

Problems with broad application of IJI—especially new doctrine Broad application of IJI doctrine would challenge modern federalism by undermining P+S, double aspect and

paramountcy doctrines which recognize that overlap is unavoidable Every head of power has a “core” but this is very hard to define - would have to start fromscratch to define

the core of each head of power Increases risk of “legal vacuums” where there is an absence of law at one level of gov’t ARGUMENT

AGAINST APPLICATION OF IJI: something won’t be regulated at all if applied Runs risk of creating centralizing tendency in constitutional interpretation b/c it favours feds Seems superfluous, because Parliament can always make its legislation sufficiently precise so as to render

any conflicting provincial laws inapplicable.

Canada v. PHS Community Services Society, 2011 SCC Prov IJI claim unsuccessful Facts: Insite is a safe injection facility in Vancouver’s downtown east-side. It has operated since 2003 under an exemption from the prohibition on possession of illicit drugs in the Controlled Drugs and Substances Act. In 2008, the federal Minister of Health refused to extend Insite’s CDSA exemption, which brought about this action.Claimants argue that the division of powers makes the federal CDSA prohibitions inapplicable to the provincial health activities of Insite staff and patrons attempt at provincial IJI under Health head (92(7))

Issue: Is the removal of the exemption ultra vires fed power because of IJI? Decision: No—the fed statute applies and IJI is not available. However, successful on charter argument.

Ratio: First and only case where provincial IJI claim made to SCC - did not fight for provincial entity, which may have been successful according to Edge b/c shutting down a “hospital” is an impairment

Reasons recent jurisprudence has limited the use of IJI, preferring to accommodate both prov. and fed. legislation

through use of the concepts of double aspect and cooperative federalism Court considered prov. core of power so they didn’t have to consider whether prov. entity could invoke IJI delivery of health care services does not constitute a protected core of the provincial power over health care

for 3 reasons:o 1. the proposed core (provincial health power) has never been recognized in the jurisprudence, as

courts are reluctant to identify new areas where IJI applieso 2. Claimants failed to identify a delineated core of prov. health power: the sheer size and diversity

of provincial health power render daunting the task of drawing a bright line around a protected provincial core of health where federal legislation may not tread

o 3. application of interjurisdictional immunity to a protected core of the provincial health power has the potential to create legal vacuums where neither gov’t can legislate

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Marine Services International Ltd. v. Ryan Estate 2013 SCC Test for IJI, IJI unsuccessfulFacts: Two fisherman died off the coast of Newfoundland. Their estates sought compensation in tort from parties allegedly responsible for their death. Provincial act disallowed negligence caim, but federal statute allows it for survivors (prov. statute—prov.

statute: Workplace Health, Safety and Compensation Act, NFLD “WHSCA”); fed statute: Marine Liability Act (“MLA”).

Issues: (1) Does the WHSCA apply to the facts? Yes. (2) Is the WHSCA constitutionally inapplicable by reason of interjurisdictional immunity or inoperative by reason of paramountcy? NOit appliesDecision: Appeal allowed. The bar to actions in the WHSA applies.

Ratio:IJI Two prong test for IJI:

o 1) determine if the provincial law trenches on the protected core of a federal competence. o 2) If it does, the second step is to determine if the effect is sufficiently serious to invoke the

doctrine. The impugned legislation must “impair” the core rather than merely affect it.

Reasons: IJI Validity not contested, so straight to applicability/operability. Maritime negligence is at the core of 91(10) as per Ordon 1st part of test: WHSA precludes maritime negligence action which is at the the core of the federal power over

navigation and shipping, as per Ordon first part of test is met Second part of test: Not met—Does not impair exercise of federal power over navigation and shipping

estate was getting payments through provincial WCB act (not at the same level, but still some payments)o Ordon predates Canadian Western Bank and COPA, which clarified the two-step test for

interjurisdictional immunity and set the necessary level of intrusion into the relevant core at “impairs” instead of “affects” prov statute can trench but not impair

Paramountcy there is no conflict b/t the statutes so paramountcy does not apply

o The federal statute is permissive, so neither frustrates nor has an operational conflict MLA gives you a cause of action for compensation; WCA gives compensation no

frustration of purposeo Does not frustrate the federal regime, just provides a different regime for compensation that is

separate from tort

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Issue #3: Operability – if it applies in two jurisdictions, which is paramount?Paramountcy Depends on the court finding a conflict between 2 VALID and APPLICABLE laws (1 prov, 1 fed). the doctrine of federal paramountcy, recognizes that where laws of the federal and provincial levels come into

conflict, there must be a rule to resolve the impasse. Under our system, the federal law prevails CWB Test: Is there a conflict between the two statutes? onus on party relying on paramountcy (CWB)

o 1. operational inconsistency: one enactment says yes and another says noimpossible to comply with both laws CWB

If the statutes allow for each other, no operational conflict (Marine Services). If it is possible to comply with both laws but difficult, may still be conflict (Moloney)

o 2. frustration of purpose: provincial enactment frustrates the purpose of the federal enactment (but standard is high)

Permissive legislation will not establish frustration of purpose (Marine Services). Ex. Dissent Moloney: debts remaining (prov. law) after “financial rehabilitation”

(fed.)=frustration Must look at the purpose of both the federal and provincial statute, because it assists in the

interpretation and the application of the statutes. Can use extrinsic evidence (CWB). Does not apply to an inconsistency between common law and legislation that is valid (Ryan Estates) Applies reciprocally: when Provinces use ancillary power in regard to fed jurisdiction, and also when prov. leg.

acts within primary powers and Parl. pursuant to ancillary powers

Alberta (Attorney General) v.Moloney 467FACTS: Uninsured driver responsible for car accident in 1989. Govt compensated injured party, obtained judgment debt against Maloney for payments. In 2008 Maloney declared bankruptcy, stopped paying his debt. Alberta said he had to still pay or they would forbid him from driving. He argues he doesn’t owe them anything anymore. Bankruptcy and Insolvency Act says free and clear, Alberta Traffic Safety Act says pay or no license.

Issue: Fed or provincial? Decision: Fed conflict of laws so paramountcy makes prov. statute inoperative to extent it was used to enforce debt discharged in bankruptcy

Ratio: when the provisions of a federal law and a provincial law conflict, the federal law prevails, and the provincial law is of no force and effect. province’s intention doesn’t matter, there has to be an actual conflict or frustration of purpose

Reasons: Majority CONFLICT: Federal act saying you’re discharged from debts– prov. act disregards this release and allows

for the use of a debt enforcement mechanism to exclude a discharge in bankruptcy Operational conflict – while you could possibly comply with both, shouldn’t have to.

Dissent (Edge prefers Dissent): For operational conflict there must be express conflict – one must say yes and the other must say no – and they didn’t feel it existed in this case Edge prefers minority: If she were advising us, she would advise us to rely on McLachlin and Coté for

understanding the alternatives for finding a conflict (operational or frustration of purpose)o Express conflict: operational; otherwise, preferable to argue frustration of purpose

Frustration of purpose: Financial rehabilitation effect of the provincial legislation was to continue burdening the discharged bankrupt until full payment of the debt, as if the discharge in bankruptcy had never occurred

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Rogers Communications Inc. v. Chateauguay, 2016 SCCFacts: dispute arose from Rogers' proposal to install a cellphone tower in the municipality of Châteauguay Rogers received the Minister of Industry's authorization under the Radiocommunication Act to construct the tower on a site that Rogers identified as suitable, but the municipality blocked its construction by imposing a “notice of reserve” (=intention to expropriate at some point) on the site. No improvements can be made to a site for two years or until notice of reserve removed. Events leading up made it clear that municipality did not want them to construct on that site.

Decision: for Rogers—Legislation was invalid not property and civil rights, not local and private nature, was found to be legislation in relation to telecommunicaitons

Ratio: municipalities can’t use its development and land use planning authority to prevent, block or dictate the location of telecommunications towers that a spectrum licence holder (effectively, a telco) wants to construct Do not ned a precise factual replication for an identical form of federal entity, you just need a general

category of entities to find a precedent (telecommunications, shipping, etc.)

Reasons radiocommunication is an area of exclusive federal jurisdiction and that the notice of reserve related, in pith

and substance, to radiocommunication. pith and substance of the city’s notice of reserve was the radiocommunication antenna’s location, not its citizens’ health and welfare or land use and development, because the city issued the notice in reaction to Industry Canada’s approval to Rogers’ request.

o Intention of city was highly relevanto No precedent for location of antenna, but goes to telecommunications -

siting radiocommunication infrastructure goes to the core of Parliament’s exclusive power over radiocommunication, and that the notice of reserve impaired the exercise of that core power.

Because the Court invalidated the notice of reserve on those bases, it did not need to consider Rogers' paramountcy and administrative law arguments. 

Location of site for single antennae: Apparently Rogers communications could not properly service the area unless they located the antennae in the precise location that they had selected

Edinger:  I would have said the moratorium was ultra vires  because it was colourable legislation in relation to either s.92(10) (a) or POGG.  (The Privy Council held that telecommunications were either POGG or 92(10)(a))  But I agree that the statement that it touched on the core… sounds like IJI.  I think the SCC hung us out to dry and I think Rogers is important for that reason alone  ie because it shows that the SCC is confused about what it is doing

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Charter Procedure Historical Context Division of powers was previously used when individual rights were challenged, they would just claim it was

ultra vires the level of govt that enacted it. o Weakness of approach: by saying something was not a prov. matter, it became a fed. matter

In 1950s, at time of [Justice] Rand court, implied bill of rights found b/t the lines of the 1867 act. That approach to protection of rights wasn’t continued, as in 1960 Bill of Rights, Diefenbaker.

o Two weaknesses of the Bill of Rights: 1) not entrenched - any inconsistent statute could overrule it – was weak re parliamentary supremacy. 2) didn’t apply to any prov. statutes.

Human rights legislation was enacted in most provinces 1982 Charter was introduced by Trudeau as part of the 1982 amendment of the constitution, was enacted as

amendment to the 1867 act in the UK as the Canada Act. 1982 Amendments are called Schedule B.

1. Charter applicability: When is the Charter available?What right/freedom can I claim and does that right/freedom apply to me? (plaintiff) Identify the section that guarantees the right, read the section, see if the individual who claims that right is

entitled to sue Rights/freedoms in charter are not drafted in identical termsmust read to see if it applies

o Availability of right depends on the right being claimed ie. s.2=everyone, s.6=every citizen of Canada, s. 11=any person, s. 15=every individual, s.20=any member of the public, s. 24=anyone, etc.

Who is subject to the Charter? (defendant) S.32(1) of the Charter defines to whom it applies: 32. (1) This Charter applies

o (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

o (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Option 1 - Federal and provincial governments and their statutes No doubt that it applies to provincial and fed leg. and exec., and all their statutes. Dolphin Judicial branch is not included in s32—court order cannot be challenged (Dolphin) If determined to be gov’t, everything that entity does is subject to Charter challenge (Godbout) BUT some cases are not obviously government entities - extending the definition of s 32:

Option 2 – Government Entity (Mckinney) Non-government entities (statutory delegated bodies) can be government for a particular purpose if there is

sufficient control by the gov’t all actions subject to Charter scrutinyo Control test: Is the entity controlled by government or autonomous? If control, government. Mckinney

Look at degree of gov’t control and the relationship in determining if it is government.o Just because an organization is created by statute, relies on government funding for its survival, and

serves a public purpose does not render them a government body Mckinney Majority Mckinney dissent: 3-part test for determining whether a semi-private entity is gov’t broader view

o 1) Control test (same as majority)o 2) Government function test: Does the entity perform a traditional government function, or a function

which in more modern times is recognized as a responsibility of the state?o 3) Statutory authority and public interest test: Is the entity one that acts pursuant to statutory authority

specifically granted to it to enable it to further an objective that government seeks to promote in the broader public interest?

Universities are currently considered autonomous (non-government) but may one day be considered government entities (McKinney).

If an entity is designated a government entity, everything it does (public and private) will be subject to Charter review (Godbout v Longueuil (City)).

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Option 3 – Statutory-delegated decision maker/Private entity performing gov’t function: Eldridge An entity which does not appear to be government but which performs governmental functions will be

government in regards to those functions and those functions only (doctrine of evasion). o Consider: Is there a direct and precisely defined connection between the nature of the activity/conduct

in question and specific government program or policy? If yes, Charter is applicable.o Note: For an entity, the question is “degree of control”, but for a function, it is “nature of the activity”.o There is no definition or list of government functionso Then the P can claim the entity is within s 32 and breached a Charter right.

Rationale: Gov’t cannot avoid Charter scrutiny by delegating decisions to other prima facie non-gov’t bodieso Issue of colourability: Gov’t CANNOT evade Charter by incorporating things into private contracts.o This case reinforces the idea that a govt can’t shirk Charter obligations by delegating to other entities.

Charter and Private Litigation Does not apply directly in private litigation BUT the courts must abide by the Charter, and apply the common

law in a manner consistent with it, which allows it to be applied indirectly (Dolphin) s.52o Use Charter values to modify common law – Use Charter values as fundamental policy statements.

Common law should be developed consistently with Charter values (Dolphin Delivery) Use precedent cases from other countries, jurisdictions (more persuasive) (Torstar)

You can always invoke the Charter but you aren’t going to get a charter analysis if the law in question is a common law. (Torstar)

What about government omissions?Vriend The Charter applies to government omissions as well as positive acts; if a legislature chooses not to include

something in their legislation that should be protected by the Charter, then the courts can step in and insist that this right or freedom be granted

Establishing comparator groups is an essential element in determining that a distinction is being created (for instance, comparing homosexuals to other discriminated groups shows that they deserve protection).

RWDSU v. Dolphin Delivery[1986] SCC – court orders not subject to CharterFacts: Court issued an injunction restraining the Ps (RWDSU, a trade union) from secondary picketing on premises of the D (Dolphin). RWDSU is challenging this decision, claiming that the injunction infringed on the s.2(b) right to freedom of expression, and the s.2(d) freedom of association.

Issue: 1) Does the injunction violate s.2(b) and (d) of the Charter? YES. 2) Does the Charter apply to the common law? Not directly, but can if it relates to gov’t action. 3)Does the Charter apply in private litigation? NODecision: For Dolphin—appeal dismissed.

Ratio Judicial orders are not government actions and therefore not subject to charter challenge

Orders come from application of prov or fed laws – so you can challenge the common law or the statutes from which the judicial orders came.

"Government" in s.32(1) of the Charter refers to the legislative and executive branches of the federal and provincial governments, but NOT judiciary

Does not apply directly in private litigation absent gov’t action BUT the courts must abide by the Charter, and apply the common law in a manner consistent with it, which

allows it to be applied indirectly S. 52

Reasons injunction does infringe upon the Charter guaranteed freedom of expression in [s.2(b)]picketing enjoys

charter protection  BUT s.32(1) of the Charter: the Charter only applies to Parliament and the legislatures legislative,

executive and administrative branches of government fact that there is no reliance on government action here means that the Charter claim must fail.

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Grant v Torstar, 2009 SCC balance of rights, Charter applies to common law indirectly b/c of s.52Facts: Torstar (newspaper) was liable in defamation to Grant at trial for $1.475 million. Appealed to SCC arguing that defamation unduly curbs free expression and chills reporting matters on public interest. Counsel for the D argued in favour of a particular new defence and supported that argument through invocation of the Charter, as well as comparative jurisprudence (they did this in other common law jurisdictions, so why not here). Issue: Should the common law be modified based on Charter values?

Ratio: Freedom of expression is not absolute. Competes with protection of reputation “Constitutional status of freedom of expression under the Charter means that all Cdn laws must conform to

it” = CHARTER VALUES ARGUMENT in private litigation The common law is not directly subject to Charter scrutiny where disputes b/t private parties are

concerned, but may be modified to bring it into harmony with the Charter. EDINGER: Use Charter values to modify common law – Use Charter values as fundamental policy

statements. You can always invoke the Charter but you aren’t going to get a charter analysis if the law in question is a common law.

The guarantee of free expression in s 2(B) of the Charter has three core rationales, or purposes 1) democratic discourse 2) truth-finding and 3) self-fulfillment. These purposes inform the content of s 2(b) and assist in determining what limits on free expression can be justified under s. 1

McKinney v. University of Guelph, [1990] SCC Universities not gov’t entities, control testFacts: The appellants were teachers at the University of Guelph who were forced to retire at the age of 65. They claimed that this was a violation of s.15 of the   Charter , and that universities are "gov’t", so the Charter applies.

Issue: What constitutes a government actor pursuant to section 32 of the Charter? Ie. Does Charter apply to a university? NODecision: Appeal dismissed—for University: teachers forced into retirement

Ratio The gov’t must have some type of direct control in shaping the organization’s policies (on a day to day basis)

for it to be considered a government body is org. autonomous or directly controlled?o Just because an organization is created by statute, relies on government funding for its

survival, and serves a public purpose does not render them a government body Universities are not gov’t in terms of mandatory retirement age—Some university actions that are directly

related to the powers given to them in their governing statutes might be considered "government" actions

Reasons although the universities receive large amounts of government funding, they operate autonomously No evidence that they were following dictates of government, generally autonomous, traditional purpose

supports autonomy, contract of employment is not government policy Although the universities are founded by governing statutes, these pieces of legislation say nothing about the

agreements struck between the universities and their employeeso Private corporations are all created by statuteo Many organizations serve a public purpose and are not gov’t (ie. railroads, airlines, etc.)

Some university actions could fall under charter, but these do not negotiating with employees is in no way a gov’t action

Dissent: Wilson J universities are gov’t and passes all 3 of below testsThree-part test for determining if an entity falls under the definition of "government": 1) Control test: Is the entity in question subject to the control of one of the branches of gov’t? 2) Gov’t function test: Despite minimal control by gov’t, Does the entity perform a traditional government

function, or a function which in more modern times is recognized as a responsibility of the state? 3) Gov’t entity test: Despite minimal control and gov’t function, Is the entity one that acts pursuant to

statutory authority specifically granted to it to enable it to further an objective that government seeks to promote in the broader public interest?

simply passing one part of the test will not always lead to something being deemed as "government"

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Eldridge v. British Columbia (Attorney General), [1997] SCC sign language, is hospital gov’t?Facts: Appellants were deaf and their preferred means of communication is sign language. Leg. neither included or excluded sign language interpreters. Argue that this infringes on their right to equal benefit of the law without discrimination based on disability under s.15(1) of the Charter. Appellants were unsuccessful at lower courts.

Issue: Does alleged breach arise from leg. or from actions of entities exercising authority pursuant to leg.?Decision: for appellants—hospital was implementing a specific government function.

Ratio Charter applies to prov. leg., and can do so in 2 ways

o 1) directly: because leg. violates a charter right and is not saved by s.1invalid (best option) o 2) indirectly: not by leg. itself, but by delegated decision maker in applying it leg. remains valid

but remedy for unconstitutional action may be sought under s.24(1) of the Charter The Charter applies to actions of private entities that have been given the power to perform these actions

under government (statutory) authority. Two ways in which a private entity will be subject to charter scrutiny:

o 1) If a private entity is completely controlled by the government, then all of their actions will be "government actions" and are subject to the Charter gov’t control

this is the stronger argumento 2) If a non-government entity is performing a function (policy/program) that is governmental in

nature, it will be subject to Charter but for that function alone. No list of gov’t actions or functions, look at circumstances including delegated authority

Reasons Leg. itself does not violate Charter b/c it does not preclude possibility of free sign language interpretation

decision of authority is constitutionally suspect, not legislation Hospitals are not government entities for the purpose of s.32 But, in providing medically necessary services, hospitals carry out a specific gov’t objective there is a "direct

and precisely-defined connection" between a specific gov’t policy and the hospital's impugned conduct. the failure to provide sign language interpretation -- is intimately connected to the medical service delivery

system instituted by the legislation

Godbout v Longueuil (City) 1997 SCC municipalities are gov’t entities and subject to CharterFacts: Appellant city adopted a resolution requiring all new permanent employees to reside within its boundaries; Respondent signed a declaration promising she would establish her principal resident in the city to work as police radio operator, and would remain there as long as she was a city employee. She moved, was dismissed.

Issue: whether the Charter applies to a municipality? YESDecision: for respondent—Charter applies and restriction on residency violates it.

Ratio Charter applies to municipalities and all of their actions as they are government entities once a body is labeled governmental, everything is subject to the charter, and that body cannot use colourable

devices or organize activities to avoid Charter responsibility

Reasons: Municipalities are run by elected officials and are accountable to the public, they have the power to collect taxes, and they have the power to make laws which they derive from the prov. gov’t They exercise powers conferred on them by provincial legislatures, powers and functions which they

would otherwise have to perform themselves. provincial gov’ts could take control away Municipality argued that Charter should not apply to private employment context, as in the case at bar, but

they are a governmental body and all of their actions are subject to scrutiny

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2. Justification of limiting a Charter right under s.1 Charter, s.1: Charter rights are not absolute, subject to “reasonable limits prescribed by law as can be

demonstrably justified in a free and democratic society.” Charter, s.33 (override provision): has a limited application. Can’t be used against s. 2, 7-15.

o You can override certain provisions in the Charter under s 33. The only province that has actually used s 33 is Quebec You basically announce that you are breaching the Charter

Steps to Charter Challenge1. Identify P and D (s.32: 1) gov’t, 2) gov’t entity, 3) gov’t function?); ensure D has not opted out under s.332. Give notice per Const. Questions Act, s. 8 to the Attorney General of Canada and BC3. Establish breach of right pursuant to your claim (onus on P)

a. Characterization process: interpret the right and your alleged violationb. This is a relatively easy stage b/c Courts are very liberal at this level as the limitations kick in at s.1

4. Determine whether infringement can be justified – Charter Rights are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

a. “prescribed by law”: there must be legislationi. If no legislation no s.1 analysis – Charter challenge fails

ii. If there is legislation Is the provision too vague? (Nova Scotia Pharmaceuticals)1. Note: Provisions of “discretion” often difficult/impossible to define, found as too

vague2. Yes no s.1 analysis – Charter challenge fail3. No s.1 analysis occurs

b. (b) “demonstrably justified in a free & democratic society” Oakes test

Free and Democratic Values These underlying values and principles of a free and democratic society are the genesis of rights and

freedoms guaranteed by Charter. Established in Oakes at para 64o Respect for the inherent dignity of the human persono Commitment to social justice and equalityo Accommodation of a wide variety of beliefso Respect for cultural and group identityo Faith in social and political institutions which enhance participation of individuals and groupso “The rights and freedoms guaranteed by the Charter are not however absolute” Oakes para 65o ARGUE: Use these values and try to persuade the court, helping your infringement claim.

Justification test: Oakes Charter rights are not absolute, they are subject to reasonable limits prescribed by law as can be demonstrably

justified in a free and democratic society Onus of proving violation/infringement is on the challenger (standard of proof is BOP) Onus of proving justified limitation is on party seeking to uphold limitation. (standard of proof: BOP) Evidence is needed to justify limitation

Test: 1. Are the limits “prescribed by law”?2. Is objective of sufficient importance to warrant overriding a constitutional right or freedom

a) pressing and substantial in a free and democratic society.3. The means chosen are reasonable and demonstrably justified (form of Proportionality test)

a) The measures must be rationally connected to the objective: Carefully designed to achieve objective in question; not arbitrary, unfair or based on irrational considerations

b) If rationally connected, they must also minimally impair the right in question. c) Effects of the measures and importance of the objective must be proportional.: the more severe the

deleterious effects of measure, the more important the objective must be

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Doctrine of Vagueness (Nova Scotia Pharmaceuticals) Vagueness: law is so unclear/imprecise that we don’t know when it will apply – ambiguous violation of s.7. If law is intelligible to judges and lawyers, then it is not too vague.

o Requires law, regulation, etc. 3 places to use argument:

1. S.7: If law is so vague that it leads to immediate conviction, s.7 violation; possible limitation on life, liberty or security of person is objectionable due to vagueness (can only use if arguing infringement of s.7 rights)

2. S.1: law is so vague that its not “prescribed by law” (“in limine”: before it gets to threshold test)3. Minimal impairment: vagueness or overbreadth is a common argument for minimally impairing a right

Threshold is high, list of factors to consider when determining vagueness:1. the need for flexibility and the role of courts in interpreting the law;2. the impossibility of absolute precision, a standard of intelligibility being preferable; and3. the possibility that a given provision may be susceptible to a number of interpretations which can co-exist.

Overbreadth: Vagueness is distinguishable from “overbreadth”=drafted so broadly that although we know what it applies to, it will be applicable to people whom the leg. did not intend for the legislation to be subject to

o analytical tool under minimal impairment branch

Margin of Appreciation Oakes test recognizes that in certain types of decisions there may be no obviously correct or obviously wrong

solution, but a range (margin) of options each with its advantages and disadvantages. Governments act as they think proper within a range of reasonable alternatives NAPE

o Legislature is best placed to make these decisions Definition: Court must give deference, to administrative and legislative bodies in balancing Charter values

against broader objectives Dore o Standard of reasonableness, not correctness Doreo Oakes test is not appropriately applied to administrative decisions because the challenge is not to a law

R. v. Oakes, [1986] SCCFacts: concerns the constitutionality of s.8 of the Narcotic Control Act: if the Court finds the accused in possession of a narcotic, presumed to have possession for the purpose of trafficking; must establish contrary on a BOP. Violates s. 11(d) of Charter (presumption of innocence). Crown argued reasonable limit under s.1.

Issue: if the limit on Mr. Oakes' right, is "reasonable" and "demonstrably justified in a free and democratic society" for the purpose of s. 1 of the Charter, and thereby justifiable? Decision: not justified – invalid

Ratio: The rights and freedoms guaranteed by the charter are not absolute

Reasons S.8 has sufficiently important reason: curbing drug trafficking valid connection between the basic fact of possession and the presumed fact of possession for the purpose of

trafficking? o S.8 does not pass the rational connection test as the possession of a small quantity of narcotics

does not support the inference of traffickingo As a result, the section is unconstitutional and the appeal dismissed.

Para. 64: Court must be guided by values and principles which are essential to a free and democratic society o Ie. respect for the inherent dignity of the human person, commitment to social justice and equality,

accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society

R. v. Nova Scotia Pharmaceuticals, [1992] SCC vaguenessFacts: Pharmacy companies charged with conspiracy "to prevent or lessen, unduly, competition" under section 32(1)(c) of the Combines Investigation Act for the sale of prescription drugs and dispensing services. They

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challenged the provision on the basis that it violated s. 7 of the Charter on account of its vagueness. Issue: whether s.32(1)(c) is unconstitutional due to vagueness and lack of an adequately defined mens rea requirement? Decision: for Crown—appeal dismissed. Section was sufficiently clear and did not violate Charter.

Ratio If the law is too vague, it will not meet the requirement of being “prescribed by law” (s. 1) or the minimal

impairment test (s.1), or violate s.7 (right to life, liberty and security of person) A law is too vague if it so lacks in precision as not to give sufficient guidance for legal debate

o Only requires that judges/counsel be able to understand and debate—once the minimal general standard for vagueness is met, there is no need to argue further

3 places to use argument:o s.7: If law is so vague that it leads to immediate conviction, s.7 violation; possible limitation on life,

liberty or security of person is objectionable due to vaguenesso s.1: its so vague that its not “prescribed by law” (“in limine”: before it gets to threshold test)o minimal impairment: vagueness or overbreadth is a common argument here

Threshold is high, list of factors to consider when determining vagueness: 1. the need for judicial flexibility; 2. the impossibility of absolute precision in legislation; and 3. possibility that a given provision may be susceptible to a number of judicial interpretations

Vagueness is distinguishable from “overbreadth” (overbroad reach vs. imprecise law) analytical tool under minimal impairment branch

Reasons Doctrine of vagueness is founded in rule of law and is a principle of fundamental justice: “the principles of

1) fair notice to citizens and 2) limitation of enforcement discretion”o 1) “fair notice” 2 elements

a) formal notice: awareness of the law/actual text; b) substantive aspect: citizens must have an "understanding that certain conduct is the

subject of legal restrictions”o 2) "limitation of enforcement discretion": requires that a law cannot be so vague that wording leads

to inevitable/automatic power to prosecute On the facts, the impugned provision of the Act was found not to be vague. The Court found that "Leg. has

sufficiently delineated the area of risk and the terms of debate to meet constitutional standard." o The word “unduly” is not precisely defined but is a word of common usage denoting seriousness

Newfoundland (Treasury Board) v. (N.A.P.E.), 2004 SCC --Facts: Province signed a Pay Equity Agreement for female employees in the healthcare sector. 3 years later, before any money was provided, the government introduced new legislation Public Sector Restraint Act to defer the start of the increase for 3 more years along with a wide range of other cuts. This amounts to approximately $24 million. Government was going through a major financial crisis. Union challenges validity of the Public Sector Restraint Act. Argue violates s 15(1).Issue: Violation under s.15(1)? Justification under s.1? Are financial concerns a “pressing and substantial obj.?Decision: There was a violation (disproportionate harm to women), but law was upheld under s.1.

Ratio: In normal circumstances, financial concerns/budgetary considerations cannot be invoked as a “pressing and substantial objective” under s.1 of Charter but may be enough in exceptional circumstances of financial crisis

Reasons pressing and substantial objective = extreme financial crisis was not a "normal circumstance"

significant evidence of the financial crisis including budget cuts to education, health, layoffs, etc. Rational connection? YES $24 million made up a significant portion of budget cuts Minimal Impairment? YES Deference to gov’t, but tailored to minimally impair rights - was temporary Balancing violation’s harm did not outweigh objective, no evidence of bad faith

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Dore v. Barreau du Quebec, 2012 SCC Facts: Dore (lawyer) engaged in angry letter writing to a judge after verbal altercation in open court. Dore complained to Canadian Judicial Council. Chief Justice of court sent copy of letter to to bar association. Disciplinary committee found he breached code of ethics. Dore appealed, based on limitation of his s 2(b) rights.

Issue: What framework should be applied to determine if Oakes analysis or administrative law analysis should be applied for a Charter challenge? ADMINISTRATIVE STANDARD OF REASONABLENESS

Decision: Appeal dismissed - decision was reasonable. Disciplinary body’s decision to reprimand the lawyer was proportionate to balancing mandate to ensure that lawyers follow code of ethics (to act with objectivity, moderation and dignity) - it was reasonable.

Ratio: When challenge is to a law that is alleged to breach charter rights, the Oakes analysis is used—court’s

decision has general application When challenge is to an administrative decision (for the decision itself or to the application of the valid law

to the individual), we use the Dore framework—the decision has individual application and does not affect the law. But court’s decision may have some effect on the administrative decision maker

Reasonableness is the standard of review for administrative decisions, not correctness.o Reviewing court only interferes if decision was unreasonableo Under reasonableness standard, there are a range of possible, acceptable outcomeso Correctness implies only one particular outcome is correct

a decision will be reasonable if the decision-maker balances the Charter values with the statutory objectives by doing the following: (proportionality)

o 1. administrative decision-maker must balance Charter values with the statutory objectives, ando 2. The administrative decision-maker must ask how the Charter values at issue are best protected in

view of the statutory objectives ie. is the violation proportional?o If balance is achieved, decision is reasonable

Reasons: For judicial review of an administrative decision (labour board, workers comp tribunal, regulatory decisions,

etc.) the Oakes test doesn’t work well (she outlines reasons but we don’t go through them in detail) So how do Adminstrators accommodate Charter values?

o “If in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.” Para 58

We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession.

o Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer's right to expression and the public's interest in open discussion.

o As with all disciplinary decisions, this balancing is a fact-dependent and discretionary exercise. This case has not always been consistently followed

o Be aware that, in a given case, a court may choose to do the full Oakes analysis. As counsel in the case, you should be ready for either

o Nothing legally wrong with doing a full Oakes analysis on an administrative decision or common law rule

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3. RemediesFrame your argument with desired remedy in mind and be prepared to justify request for the remedy Always think about: what is the result I want? What remedy do I want? Never just go in talking about the law

without considering thiso Know where to find the arguments and the general guidelines used for each type of remedy

Post Charter: s. 52 (supremacy clause) and s. 24(1) (appropriate and just remedy) Even if parliament does not like the result in a particular case, they can relegislate (“dialogue between

courts and legislature”) OR parliament can use s.33 (notwithstanding clause)

SECTION 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances Application: S. 24(1) applies only to breaches of Charter rights of individuals or groups Directed at: Unconstitutional acts of government agents operating under lawful schemes (Ferguson) Who can award remedy? Only available from a court of competent jurisdiction (Ward, Conway)

o NOT Provincial criminal courts o Tribunals can generally grant remedies (but still have to look at 2nd stage)

More judicial discretion than s.52 – use a remedy that is appropriate and just in the circumstances (Ferguson)o Examples: injunction, exemption, damages, restitutionary order, anything consistent w/separation of

powers, rule of law, and ordinary remedy considerations Only VERY RARELY available with s.52(1) or during period of suspension (for suspension, this would allow

declaration of invalidity retroactive effect) (Schachter) ex. prohibition on assisted suicide Cannot undermine the purpose of the law – would undermine separation of powers (Ferguson)

o NEVER available for unconstitutional mandatory minimums (Ferguson) Contrast to S 52(1) where a LAW is challenged as invalid for breaching the constitution (including the Charter),

s 24 (1) is invoked when the CLAIMANTS RIGHTS are violated.

Five Considerations for “appropriate and just remedy” Vriend, Ward Five considerations for “appropriate remedy” (from Vriend, echoed in Ward):

1. Meaningfully vindicates claimants rights and freedoms2. employs means that are legitimate within the framework of democracy (“cannot depart unduly or

unnecessarily from the judicial role”) [Edinger really likes this]3. Must be a judicial remedy which vindicates the right while invoking the function and powers of a court

(of kind; “fair”)4. Fair to the party against whom the order is made5. s. 24(1) can evolve in common law

Some countervailing considerations may be (i) the existence of alternative remedies (e.g. just declaring that there was a breach) or (ii) concerns for good governance (e.g. fear of a chilling effect).

Test for determining a “court of competent jurisdiction Conway1. Does it have jurisdiction to decide questions of Law?

If it does, and if Charter jurisdiction has not been excluded by statute, the tribunal will have the jurisdiction to grant Charter remedies

Look to: scope and nature of tribunal’s statutory mandate, structure and function Most tribunals do have jurisdiction to decide questions of law because it is usually applying a particular

statute so the tribunal has to determine the meaning of the provisions in the statute. This is of course restricted if the statutory provision creating the powers of the administrative tribunal

prevents specific remedies NOT provincial criminal courts

2. Can the Tribunal grant the particular remedy sought, given the relevant statutory scheme? Yes, if “the scope and nature of the Board’s statutory mandate and functions” provide the authority to grant

a particular remedy. This step involves a determination of legislative intent including delineating the authority provided under

the relevant statutory framework (mandate, structure, and function).

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Five Steps to Sue for Damages under s. 24 Ward1) P must prove the Charter breach2) P must justify damages as a remedy – functional justification – must fulfill one or more of:

a) Compensation; b) Vindication of the right; c) Deterrence of future breaches 3) Government has burden of bringing up countervailing factors - why damages are inappropriate

a) Existence of alternative remediesb) Concerns for good governance

Chilling effect (but usually compliance w/ charter = good governance) State may establish that damages should not be awarded without a minimum threshold of

gravity (different thresholds in different situations)4) Assess quantum of damages—must be rational and proportional—burden on Claimant

a) How serious is the breach? b) How was the claimant impacted? c) Must be fair to claimant and state;d) Can be punitive (vindication, deterrence)

5) Must be done in a court of competent jurisdiction

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. Application: S. 52: applies to whole constitution and any law inconsistent with the Charter Plaintiffs: applies to people whose rights have been infringed AND those invoking the rights of third parties

(ex. Big M Drug Mart) Directed at: Section 52: used when a law exceeds a head of power or a charter right or freedom in purpose or

effect Ferguson Who can award the remedy? no limit is found in the text of s. 52

Guidelines for applying S 52 remedies Schachter(1) Use Oakes test to define extent of inconsistency – “the manner in which the law violates the Charter and the manner in which it fails to be justified under s. 1 are critical” – laws only struck down to extent of inconsistency

Purpose test –Either 1) purpose is not sufficiently pressing or substantial to warrant overriding Charter right, or 2) if purpose of leg is unconstitutional Should be struck down as a whole

Rational connection test –if purpose is pressing and substantial, but the means used to achieve are NOT rationally connected to it whole portion of leg that is not rationally connected is struck down

Minimal impairment test –where impairment is disproportionate to the purpose strike down, sever, read in

(2) Determine whether inconsistency should be struck down/severed/read in - and which parts(3) Determine whether the declaration of invalidity of that portion should be temporarily suspended

Guiding principles of Reading-In/Severance: (when determining if it is appropriate) ( Schachter, Vriend)1. Respect for role of the legislature

Avoid undue intrusion into legislative sphere and respect separation of powers2. Respect for purposes of Charter – if not available, would have to strike down (remove benefits for all)

Reading in and severing can only be used in the CLEAREST OF CASES where:1. Legislative objective is obvious, or revealed through evidence offered in s.1 argument, and severance

would further objective, or constitute a lesser interference than striking downa. Ie. would striking down deprive a larger group of Charter rights than reading in/severance?

2. severance would not constitute an unacceptable intrusion into the legislative domain3. Would not involve an intrusion into legislative budgetary decisions so substantial as to change the

nature of the legislative scheme in question

Severability

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Rules of severance: Vriendo (1) Would legislature have passed that statute without that provision?o (2) Do the other provisions rely on the provision?o (3) Is that provision integral to the statute?

Guiding question is whether or not the legislature would still have enacted the statute if they’d known this provision would be severed. Schachter

o If yes, you can sever. If no, you can’t. Usually happens with overinclusive or underinclusive cases Schachter

o Overinclusive: identify the inconsistent portion and make sure the remainder is in keeping with the legislative purpose/objective Can cut a bit out

o Underinclusive, severe out the portion that limits others (but not the whole statute) Depends on finding of invalidity (lack of jurisdiction or breach of Charter provision)

Reading in Schachter Reading in: omissions/underinclusivity: Especially appropriate where minority rights have been denied

consideration Vriend o Must consider budgetary limitations and compare sizes of omitted/included groups.

If omitted group smaller, reading in more likely. Vice versa (Schacter: adopted v biological) Remedial precision—Only read in if consistent with legislative intent: ie. The legislation had a missing part

which must be read in in order to further the purpose of the statute and to correct an inconsistencyo Use where legislative objective is obvious and reading in/severance would further that objective

if unable to determine with precision how statute ought to be extended in order to comply with constitution, DON’T READ IN

A GOOD CHOICE IF Reading in/severance = lesser interference than striking down Vriend Reading in potentially intrudes into sphere of legislative branch Vriend

o Must be as faithful as possible within the requirements of the Constitution to the scheme enacted by the Legislature.” –“Courts should only go as far as required to protect rights, but no further” Schacter

Suspension of Declaration Schachter Suspension of declaration: can’t do this too often/too long because Charter breaches continue during it. Temporary suspension allows Parliament or prov legislature an opportunity to bring it into line with its

constitutional obligations where:A. striking down the leg. without enacting something in its place would pose a danger to the public; B. striking down the legislation without enacting something in its place would threaten the rule of law, orC. the legislation was deemed unconstitutional because of under-inclusiveness rather than overbreadth,

and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated

Schachter v Canada (1992) * Charter/Constitutional Remedies overview Facts: P and wife had child, father applied for EI benefits under section for adoptive parents (Unemployment Insurance Act). He was denied benefits, brought action under s.15 claiming equality rights b/c it denied benefits to biological parents. TJ accepted claim of violation of equality rights and gave declaratory relief under s 24(1) extending benefits to biological parents.

Govt argues that the remedy (declaratory relief extending benefits) should be overturned

Decision: Declared invalid, with suspension— The correct remedy would have been re-legislating, which is not open to the court.

Ratio Court has flexibility in determining what course of action to take following a Charter violation that is

not saved by s. 1 scrutiny. In choosing how to apply s. 52 or s. 24 a court will determine its course of action with reference to the

nature/extent of the violation and the context of the specific legislation under consideration.o Section 52 mandates striking down a law inconsistent with the constitution, to the extent of the

inconsistency. So can strike down leg. completely, temporarily suspend until remedied, may be

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read down to avoid violation, omission may be read in, or impugned provision may be severedo In addition, s. 24 of the Charter extends to any court of competent jurisdiction the power to grant an

"appropriate and just" remedy to "[a]nyone whose [Charter] rights and freedoms ... have been infringed or denied". (May manifest in constitutional exemption, injunction or damages)

Charter Remedies (s.52) where the purpose of the legislation is itself unconstitutional, the leg. should be struck down in its entirety Severance: declaration that an unconstitutional provision(s) or part is invalid, so that the whole statute need

not be struck down. Suspension: temporarily suspending the declaration of invalidity to give the legislature a chance to remedy

the invalidity. Therefore, while invalidity is suspended, possible for people to be subject to that law Reading down: Reading the statute in a certain way to make it valid - so not including words that create

problems. This is statutory interpretation—ideal because then there is no need to change the statute. Reading in (para 32): adding a word/phrase/clause to a statute which has been enacted due to perceived

omission/exclusion by gov’t leading to a Charter violationo Edge: objects to this and thinks this is legislating and should be done sparinglyo Twin guiding principles: 1) respect for role of legislature; 2) respect for purposes of the charter

With reading in, reading down, severance words can still remain in statutes, must look to case law

s 24: Rarely going to be used when the court can use s 52 instead. s 52 authorizes a range of remedies when it is

the law that is challenged. In contrast, s 24 authorizes a remedy for an administrative body. Use when the law is valid and when the complainant is concerned about an administrative law decision

(Dore) - so when the decision will have individual, not general application. s 24 can have broader application - you are not prohibited from asking for a remedy under s 24 if you are

complaining about your Charter rights. But if your Charter rights have been infringed by a particular law, then it is much more efficient for the court

to strike down the law; otherwise, future complainants will also ask for s 24 remedies.

Reasons: This case: violated a positive right (right to equality under the law) more likely to fall into reading

down/reading in or striking down & suspending than immediate striking down b/c benefit incurringo Under-inclusive: parliament must equalize the provision of the benefito Striking down would deprive eligible people of benefit w/o providing relief to P

Requires suspension so parliament can relegislate Should the court Read-in? Must look at legislation:

o No clear legislative objective of the particular provisiono Budgetary considerations suggest deference to parliament o Reading in would be a substantial intrusion into legislative domain

Vriend v Alberta (1998) ** Applies Schachter, clarifies reading in for legislative intentFacts: Vriend was dismissed from employment with catholic private school when they found out he was gay. Filed a human rights complaint, it was dismissed as sexual orientation is not included in the Alberta Human Rights Act. Brought action claiming that the failure of the Act to protect against discrimination is a violation of the Charter. SCC found violation, not saved under s.1. Appellant argues for reading in.Issues: Does the Charter apply to government omissions, i.e. decisions not to include certain things in legislation?Decision: Yes—The court "read in" sexual orientation as grounds for discrimination.

Ratio Charter applies to gov’t omissions as well as positive acts; if leg. excludes something in their legislation that

should be protected by the Charter, then courts can step in and insist that this right or freedom be granted. Must consider two principles when determining if reading in is appropriate: (1) Respect for role of

legislature (2) Respect for purposes of Charter It is the effects of legislation that matter in creating discrimination; purposes of omissions must be

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considered if they are relevant just as much as purposes of the legislation as a whole is considered. Establishing comparator groups is an essential element in determining that a distinction is being created.

Reasons: Dealt with omission reading down isn’t available Large number of sections that play an important role in the scheme severance would not be possible Consideration of role of leg. and purpose of Charter: Interference with scheme enacted by the legislature

by striking down would deprive all of human rights protection, against the purpose of the Charter Comparator groups—Two ways to find discrimination/distinction: 1) treats homosexuals differently than

heterosexuals; 2) other minority groups may receive more protection than homosexuals Justification for reading in: Alberta leg. had expressly chosen to exclude sexual orientation

o But if reading in is not available when government is explicit, it suggests government should just violate Charter rights in deliberate ways

o Government deferred the decision to the judiciary (intention to defer to courts) Edge: suspension would have been an appropriate remedy – put pressure on the Legislature

R v Ferguson (2008) * S 52 remedy, mandatory minimum sentencesFacts: Constable Ferguson was charged with manslaughter with a firearm, subject to 4 year mandatory minimum sentence. Challenged the validity under s 12 of the Charter that it was “cruel and unusual”. Issue was remedy. Wanted a constitutional exemption under s 24(1), but also for the law to remain valid. Argues: s 52 is blunt, preserves law to maximum extent possible (fits well with severance, reading in,

reading down)

Decision: exemption to mandatory minimum not granted—s 52 would apply if the violation was found. Decision is limited to mandatory minimums.

Ratio: If a law is found to violate the Charter it should be declared of no force and effect as per s 52. A s 24 constitutional exemption is not an available remedy.

Reasons: Constitutional exemptions will almost never be available for mandatory minimum sentences Legislature created minimum sentences to reduce judicial discretion. Granting an exemption creates judicial

discretion and goes directly contradicts parliament’s intent NOT striking down legislation that violates the Charter would leave offensive legislation on the books

Generates uncertainty, law & practice would diverge, removes notice to citizens, uneven/unequal application of the law, does not give clear guidance to government

o So an s.24(1) constitutional exemption is not an appropriate remedy

Vancouver v Ward (2010) ** CREATES FRAMEWORK FOR AWARD OF DAMAGES UNDER S 24(1)Facts: Ward’s charter rights violated by officials who detained, strip-searched and seized his car w/o cause, all of which was caught on film. Ward, a lawyer, sues everyone.Issue: When can damages be awarded under s.24(1)?Decision: $100 for car seizure, $5000 for strip search (charter damages), $5000 wrongful imprisonment (tort damages); Appeal allowed damages are an available remedy under s.24(1)

How to assess damages under s.24(1):1. Proof of a charter breach can be for injuries to intangibles2. Functional justification of damages as a remedy: 1) compensation, 2) vindication and 3) deterrence) any 1

of 3 is sufficient3. Gov’t can raise countervailing factors Ie. not an appropriate case for awarding damages: 1) alt remedies ie.

tort remedy; 2) concerns for good governance 4. Court determines quantum of damages – must be rational and proportional

R v Conway (2010) * Test for determining if a tribunal can order s 24 remediesFacts: Physically and sexually abused as a child, twice convicted of assault. Raped aunt not guilty, NCRMD.

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Argued Charter rights violated by mental health facility argues for absolute discharge under 24(1).

Issues: Is the Ontario Review Board a court of competent jurisdiction within 24.1? YESCan they grant a Constitutional Rememdy? YESCan they grant an absolute discharge? YES but not of dangerous NCR patients

Test for determining if a Tribunal is a Court under s 24(1) that can grant Charter remedies:1. Does it have jurisdiction to decide questions of Law? If it does, and if Charter jurisdiction has not been excluded by statute, the tribunal will have the jurisdiction

to grant Charter remedies in the course of carrying out its statutory mandateo Most tribunals do have jurisdiction to decide questions of law because it is usually applying a

particular statute so the tribunal has to determine the meaning of the provisions in the statute.o A provincial criminal court has been held NOT to be a court of competent jurisdiction, because in

its criminal law capacity it doesn’t award damages, just deals with criminal offences.o Must act consistently with the Charter and its values when exercising statutory functions

2. Can the Tribunal grant the particular remedy sought, given the relevant statutory scheme? o Must determine legislative intent of statute for interpretationo whether the remedy sought is the kind of remedy that the legislature intended would fit within the

statutory framework of the particular tribunalo Tribunal exercises delegated authorityo Look to: scope and nature of tribunal’s statutory mandate, structure and function

Application:1. Yes Quasi-judicial body with significant authority over vulnerable population, authorized to decide

questions of law (parties can appeal to tribunal, language of mandate, ongoing supervisory jurisdiction over NCRMD)

2. Board’s mandate to protect public safety Parliament did not intend NCR patients to be given absolute discharges as a remedy NO absolute discharge

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Freedom of Expression (s.2(b)) S. 2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion & expression, including freedom of press & other media of communication

Sequence1) S.32 defendant ALWAYS need this2) Burden on claimant to establish that activity/form of expression falls within 2(b): If an activity attempts

to convey meaning, it has expressive content and falls under s.2(b) Irwin (fairly easy to establish)a. can be through written or spoken word, arts, physical gestures or acts. Includes commercial

expression. Irwin Violence is not protected under freedom of expression Irwin Right to receive information protected under freedom of expression Bryan There is no requirement that the activity be purely or predominately expression to qualify for

2(b) can be incidental. Baier Purely physical activity can be expression if has intent to express Butler

o Location: private property NOT covered by 2(b) City of Montrealo Test for protection of 2(b) to public property– onus on the claimant City of Montreal

Is this a public place where one would expect constitutional protection for freedom of expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve? (1) democratic discourse; 2) truth finding and 3) self fulfillment)

Consider the following factors: a) the historical or actual function of the place (historical use for public discourse

indicates consistent 2/ 2(b) purposes)o most cases will be decided on this factor

b) whether other aspects of the place suggest that expression within it would undermine the values underlying freedom expression

o Is it essentially private despite being gov’t owned?o Does the current function require privacy or limited access?o Is it compatible with open public expression?

3) Characterize the form of expression - locate within 2(b) (either core, periphery, or somewhere between) which defines the extent of judicial expression Irwin

o Core forms of expression get more protection than periphery/fringe forms of expressiono Political expression is usually considered at the core of s 2(b). Bryano Right to receive info is at the periphery of 2(b). Bryano For instance, commercial expression is protected but is not at the core of 2(b) Irwino Characterize the form of expression as core if possible if you want to get protected – Butler tried to

state porn encouraged political discourse at its coreo Consideration: if the activity is for profit it will be afforded less protection. Butler

4) The claimant has a burden to establish that the FOE guaranteed by the charter has been infringed in purpose or effect Irwin Toy

o Purpose – was it to infringe a right or was there another objective in mind? Irwin Ie. Preventing expression: directly restricting content or by restricting a form tied to content

o Effect – if the purpose is not to infringe FOE, then is the effect to infringe it? If purpose is neutral but effect infringes, must show that the activity promotes one of the

principles underlying the freedom incidental Irwin (1) Seeking and attaining the truth (2) Participation in community, social and political decision-making (3) Individual self-fulfillment and human flourishing

o Shifting purposes: Legislative purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable Butler

Can’t invent a new purpose for an existing statute—drafter’s original purpose is relevant Edge: argument for claimant – gov’t is shifting its purpose

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5) D (Gov’t) may argue that it is not a claim to a fundamental freedom, it is a claim to a statutory platform—Defence is raised relatively frequently but rarely succeeds Baier

o If the plaintiff is arguing for a positive right, consider Dunmore factors: 1) Is it a form of expression? 2) Does P want a positive entitlement to govt action or negative right? If positive, go to 3

Positive right = gov’t must legislate or act to support/enable expressive activity; negative = seeking freedom from gov’t leg. w/o any need for gov’t support or enablement

3) must satisfy all 3 Dunmore factors1) claim must be grounded in fundamental Charter freedoms rather than in access to a

particular statutory regime2) claimant has demonstrated (evidence) that exclusion from a statutory regime has the

effect of a substantial interference with 2(b), OR has the purpose of infringing 2(b)3) The gov’t must be responsible for the inability to exercise the fundamental freedom

o Does the government substantially orchestrate, encourage or sustain the violation of fundamental freedoms?

4) If all 3 satisfied, move to s 1 analysis6) Claimant may argue vagueness (Nova Scotia Pharmaceuticals) or that it is a policy not “prescribed by

law” to preclude s.1 analysiso Req. for a policy being leg. in nature and constituting a limit “prescribed by law” (ex. limits in

municipal by laws, rules of a reg. body, provisions of a collective agreement w/ gov’t ent.) GVTAi. enacted by a government entity pursuant to a rule-making authority

ii. that is authorized by statute to make binding rules andiii. sets out a general norm or standard of general application

1. General= standards which are applicable to all who want to take advantage of the (advertising) service rather than to a specific case

iv. that is meant to be binding and v. is sufficiently accessible and precise (vagueness)

7) Burden shifts to gov’t to justify infringemento Was it a law or a decision by the gov’t?

If law Oakes If decision Dore: objectives of statute must be balanced against charter rights and values

8) Possible for gov’t to argue that they do not need to bring evidence by looking to contextual factors—court can rely on “contextual factors” (ie. logic and reason) about the impugned provision Bryan

o Contextual factors indicating less evidence may be sufficient: 1. Nature of the harm and inability to measure it (absent determinative social science, logic

and reason can be used) 2. Vulnerability of the group protected (not vulnerable—less protection needed) 3. Subjective fears and apprehension of harm 4. Nature of the Infringed Activity

o Edge: it is always in counsel’s best interest to adduce evidence9) Remedy: 52 or 24(1) or both (rare)?

o 24(1): only the chartero 52: all laws – both federalism and charter

You can make arguments regardless of whether the burden is on you or the other party The burden of proof determine who wins or loses: ie. if the case reveals a 50-50 split, then the party who

has the burden is not on wins

Irwin Toy v Quebec (AG) (1989) * Definition of Expression * Basic TestLEADING CASEFacts: Irwin sought declaration that provisions Quebec Consumer Protection Act prohibiting commercial advertising directed at <13 y/o were ultra vires Quebec and infringed Quebec Charter. Section 248 prohibits, subject to regulation, attempts to communicate a commercial message to persons under thirteen years of age.

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Decision: Violated 2(b), but justified under s.1. Law upheld as justifiable infringement of FOE.

Ratio If an activity attempts to convey meaning, it has expressive content and falls under s.2(b)—onus on P

o can be through written or spoken word, arts, physical gestures or acts. Includes commercial expression.

o Violence is not protected under freedom of expression don’t know the full scope of what’s not protected – ARGUMENT for CROWN

Test to determine if leg. violates s2(b) – onus on Claimanto Is the activity in the protected sphere of free expression (Does it convey meaning)?o Does the impugned legislation infringe on that protection in purpose or effect?

Purpose v Effecto Purpose – was it to infringe a right or was there another objective in mind? OR

directly restricting the content or by restricting a form tied to content ex. prohibiting handing out pamphlets

If govt aims to control only physical consequences of activity, regardless of meaning, purpose does not trench on FOE ex. prohibiting littering

o Effect – if the purpose is not to infringe FOE, then is the effect to infringe it? If purpose is neutral but effect infringes, must show that the activity promotes one of

the principles underlying the freedom: para 53 (1) Seeking and attaining the truth (2) Participation in community, social and political decision-making (3) Individual self-fulfillment and human flourishing

o Sometimes Leg. has no idea it will be infringing a particular right or freedomo Claimant: identify the meaning being conveyed and how it relates to one of these principleso Govt: argue that the activity does nothing to promote these principles

Reasons: Does advertising aimed at children fall within the scope of freedom of expression? YES

o Commercial expression falls within freedom of expressiono Freedom of expression is fundamental to a free, pluralistic and democratic societyo Freedom of expression does not protect threats of violence or acts of violence

Was the purpose or effect of the legislation to restrict freedom of expression? PURPOSEo Here: Purpose was infringed Restriction tied to content restrict content directly as well as the

manner in which the content must be expressed (cannot use superlatives, directly incite a child to buy)

Was the infringement justified under s.1? NOo Pressing and substantial objective: protecting a particularly vulnerable groupo Rational Connection: YES – obvious connection between banning advertising to children and the

objective of protecting children from advertisingo Minimal Impairment / Balancing objectives:

Question is whether govt had a reasonable basis for thinking it impaired as little as possible given the objective.

Social science evidence shows that it is reasonable to ban advertising to children was a minimal impairment of free expression.

While there were less intrusive options available that would meet the objectives of govt, evidence showed it was necessary to ban advertising so the ban was a minimal impairment.

Dissent: infringement not justifiable under s.1—did not accept evidence of harm to children Edge: If you can identify a vulnerable group, it is helpful to a Charter claim

o In this case, the vulnerable group is children Courts give more leeway to legislation that is b/t two non governmental groups instead of legislation as

b/t the state and individuals

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R v Butler (1992) * “Core” of freedom of expressionFacts: Appellant has shop in Winnipeg MB that sells/rents “hard-core” videotapes and magazines, sexual paraphernalia. Convicted under obscenity provisions of the Criminal Code s 163. Appellant argues violation of FOE and when it comes to S1 analysis argues vagueness.

Issue: Does s. 163(8) violate FOE? YES but saved under s.1

Decision: Violates 2(b), justified under s.1 The effect of the law’s infringement of a protected right is balanced with legislative objective. New trial ordered.

Ratio Different categories of expression lie in different places relative to the core of s 2(b), and are thus afforded

differing degrees of protection. Expression at the periphery of s 2(b) is less protected, while expression at the core is most protected o Political expression is at the very centre - that is the main purpose of freedom of expression. If the

meaning conveyed is political, you have almost necessarily gleaned greater protection. Shifting purpose

o Edge: can’t use shifting purpose, you are stuck with the original purpose of the statute. Shifting purpose is a “derogatory term”. If you can assert that the gov’t is shifting its purpose, well on your way to a victory

Reasons: Basic argument is that s 163(b) infringes on s 2(b) because he is not allowed to sell what he wants to sell.

o This kind of expression lies far from the core of FOE. Primarily economically motivated Butler argued that definition of “obscene” is too vague - the meaning must be intelligible.

o Sopinka rendered it intelligible below so s.163 is “prescribed by law” Three tests were used to determine whether material is obscene: (i) community standards of tolerance test, (ii)

degradation or dehumanization test, and (iii) artistic defence. o Test – what the community would tolerate others being exposed to on the basis of the degree of harm

(may predispose persons to act in anti-social manner) that may flow from such exposure. The stronger the inference of a risk of harm the lesser the likelihood of tolerance.

Infringes 2(b)? YES – seeks to prohibit certain types of expressive activity Apply Irwin Toy:(1) Determine whether the conduct constituted non-violent activity which attempted to

convey meaning. o You can condemn meaning that is conveyed, but regardless, the section must apply.• If something is on

edge of s 2(b) and not at core, court has more room to limit freedom of expression. o This expression is at the periphery - less protection is afforded to such expression.

(2) Consider whether the effect or purpose of the legislation was to restrict freedom of expression.

Pressing and substantial objective? Historical purpose of anti-obscenity law was to protect morality from anything inherently undesirable,

independent of any harm to society Goal is avoidance of harm resulting from antisocial attitudinal changes from exposure to obscene

material, public interest in maintaining a decent societyo This is a legitimate objective. o Edge: masking a shifting purpose here – Sopinka finds an “additional purpose”

Objective is pressing and substantial

Proportionality Keep in mind the nature of expression that is infringed: making a pornographic film is a form of expression Rational Connection: Sufficiently rational connection between criminal sanction that demonstrates societies

disapproval of materials that victimize women. Minimal Impairment: excludes materials with artistic, scientific or literary merit;, or that without violence

or risk of harm to society. Parliament has tried and this is as good as its going to get. Court does not agree

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that there are “less intrustive measures to take” as simply restricting ACCESS to the materials does not achieve the same objectives.

Balancing: Upheld. The effect of the law’s infringement of a protected right is balanced with legislative objective.

City of Montreal (2005) * location test – infringement justified as on public streetFacts: Montreal has noise by laws. Respondent operates club with a loudspeaker at the main entrance. Charged with producing noise that could be heard outside using sound equipment in violation of a Montreal bylaw “By-law concerning noise”. Clearly breached bylaw. It was in a commercial neighborhood.

Issue: Does bylaw against amplified noise outside infringe s 2(b)? YES but justified under s 1 analysis

Ratio Exceptions to expressive content falling within scope of 2(b): METHOD or LOCATION of expression might

remove it from 2(b) protectiono 2(b) does not extend to all locations either—ex. private property is not included

Test for protection of 2(b) to public property– onus on the claimanto 1. Is this a public place where one would expect constitutional protection for freedom of expression?

Ie. Does expression in that place conflict with the purpose s 2(b) is meant to serve: Namely 1) democratic discourse; 2) truth finding and 3) self fulfillment

o Consider the following factors: a) the historical or actual function of the place and b) whether other aspects of the place suggest that expression within it would undermine the

values underlying freedom expression Courts will develop precedent incrementally about when expression in a public place will

undermine the values underlying freedom of expression Edge: 99% of the time, the first prong of test determines answer the question

Reasons: Within 2(b)? 2(b) infringement?

o Irwin: (i) the noise had expressive content; (ii) the provision limits free expression in effect (not purpose)Engaging in lawful leisure activities promotes such values as individual self-fulfillment and human flourishing

o Commercial expression covered by 2(b) Irwin Does location preclude 2(b) in this case) Falls within public place (a street), passes location test nothing to

suggest that allowing FOE on streets would subvert values of FOE; o Primary purpose: provide means of passing

Justified infringement using Oakes? YESo Objective: combatting noise pollution – serious concern in urban centers, cities must act to reduce ito Proportionality

1. RC: Yes 2. MI: YES

Not an absolute ban (grant exemptions), prohibited noise above certain loudness and particular noises. Court will not interfere because it can think of a less intrusive way to manage the problem

3: Balance: Infringement does not outweigh objective Historically, streets and surrounding areas are public places Peterborough

R v Bryan (2007) * How much evidence is needed to show infringement? Political ExpressionFacts: Canada Elections Act, s 329 prohibits broadcasting election results on election day until every poll is closed across Canada. This provision limits the freedom to receive political expression.

Decision: Violates 2(b), justified under s.1 (5-4 split)

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RATIO Political expression is the most protected form of freedom of expression.

o So it is in counsel’s best interest to argue that the expression is political in nature. Court can rely on “contextual factors” (ie. logic and reason) in absence of evidence; however, it is always in

councel’s best interest to adduce evidence Right to receive information protected under freedom of expression

Reasons: In determining the sufficiency of evidence required to establish that a s 2(b) violation is saved by s 1, the

provision must be viewed in its context. This is the only way to determine the objective of the provision. o Contextual factors here: prohibition for transmitting results from Maritimes before polls closed in

the west, had been in place since 1938 pre-dates technology, so if CBC was not broadcasting, no one would hear

Contextual factors indicating less evidence may be sufficient:o 1. Nature of the harm and inability to measure it—reasoned apprehension of harm/speculation

Some harms are "difficult, if not impossible, to measure scientifically" o 2. Vulnerability of the group protected – Cdn voters are presumed to be mature and intelligento 3. Subjective fears and apprehension of harm—subjective opinion of Canadians mattero 4. Nature of the Infringed Activity: Political Expression

Oakes: Objective—ensure informational equality for voters, promote public confidence and reputation of electoral system which is a pillar of Canadian democracy. Magnitude of the ban is small.

o Don’t always need evidence to prove s1—can rely on logic and reason. Positive effects outweigh negative.

Dissent: DOESN’T PASS 3rd TEST OF PROPORTIONALITY (COST/BENEFIT ANALYSIS) Evidence is highly theoretical, highly speculative and far from sufficient to justify infringing on the core right

at issue Harm caused is considerable, and is more clear than harm of repealing – not proportional

Baier v Alberta (2007) * Positive claim rightsFacts: Involves eligibility for election to school boards. Alberta has Local Authorities Election Act, which governs eligibility to run for election on school boards in the province. Amendment provokes the litigation - School Trustees Statutes Amendment Act - required that any school employee (i.e. teacher) wishing to run for election for any school board in the province had to take a leave of absence, and if elected, had to resign. Teachers asserted that not being able to run for school trustee as a teacher was a limitation on freedom of expression.

Decision: Does not infringe 2(b)—does not limit other forms of expression, just ability to be a trustee

Ratio: If the plaintiff is arguing for a positive right, consider Dunmore factors (ex. access a statutory platform for

expression):o 1) Is it a form of expression?o 2) If so, are they claiming a positive entitlement to govt action (ie govt must legislate or otherwise

act to support or enable an expressive activity) or simply the right to be free from govt interference (negative right—simply asking to strike a law down)?

If positive rights claim then must satisfy all 3 Dunmore factorso 1. claim must be grounded in fundamental Charter freedoms rather than in access to a particular

statutory regimeo 2. claimant has demonstrated (evidence) that exclusion from a statutory regime has the effect of a

substantial interference with s. 2(b) freedom of expression, OR has the purpose of infringing freedom of expression under s. 2(b)

o 3. The gov’t must be responsible for the inability to exercise the fundamental freedom Does the government substantially orchestrate, encourage or sustain the violation of

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fundamental freedoms? If three factors met, s.2(b) has been infringed and analysis will shift to s.1

Application: Is it within 2(b)

o Appellant claim: I do not have access to school trusteeship to express myself form of expression so falls within 2(b)

Court held the appellants had a positive claim had previously been included in the statutory scheme but the amendments had excluded them

Dunmore Factors:o Dunmore factors

Claim is to a particular statutory regime of school trusteeship Does not meet 1st factor claims of underinclusion (precludes P from using a statutory

platform) should be grounded in FOE not statutory regime in this case it was grounded in trusteeship – not a protected freedom Fails #1

Would also fail 2nd

Does not substantially interfere (remain free to express themselves in relation in many other ways)

No evidence that the purpose was to restrain their expression In no case, except for Dunmore itself, has the justification for access to a statutory platform been satisfied

BC Freedom of Information and Privacy Association v. AGBC, 2017 SCC Facts: Challenge to BC election act, which requires registration of all those persons or corporations, who sponsor

election advertising. BC Freedom concern: that the elections act would be read broadly and it would apply to all sorts of activities

which BC freedom of information thought it ought not to cover ie. small scale election activities, signs on lawns, bumper sticker, T-shirt with political message.

P was seeking a declaration that s.1 can’t be used to justify requiring registration of anyone who has spent less than $500 on whatever they are doing.

Issue: can infringement on 2(b) be justified?

Decision: for P—Election’s act read down down the section to exclude requirement for registration for “solitary endeavors” purely a statutory interpretation exercise in this case

Ratio: it is desirable to read down in statutory interp. where possible, b/c it allows the rest of the act to be valid Evidentiary standard at justification stage: Generally, must adduce evidence. But where the scope of the

infringement is minimal, minimal deference to the legislature may suffice and social science evidence may not be necessaryThough logic and reason, without assistance, can only go so far, they can go far enough

Reasons This is political expression, which is at the core of s.2(b) (Edge: use this as authority) The court read down the provision as a matter of statutory interpretation: Sponsorship requires 2 people, a

sponsor and an actoro Can’t have sponsorship when actor is involved in a solitary endeavor (ie. wearing a t-shirt, bumper

sticker, etc.)o The court concedes it may not always be so clear

Can the remaining meaning be justified under s.1?o Yes—as interpreted by the court, s.239 does not infringe

Reading down allowed them to find the rest of the act valido Registration is not a prohibition, it is a way of maintaining control

By not leading social science evidence at this stage, the Attorney General of British Columbia has seriously diminished its ability to justify the infringement of a Charter right, but it has not eliminated it

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Greater Vancouver Transit Authority ** EXCELLENT CASE FOR REVIEWFacts: The respondent wanted to post political advertisements on the sides of buses, and the appellants refused, stating that they allow commercial but not political advertising. Students and teachers wanted to buy advertising space to raise awareness about tuition fees. Transit authorities policy s 9 - no advertisement will be accepted which expresses political information. The side of a bus is considered a public space. Not a statute . It was GVTA policy – not a law.

Decision: GVTA Articles 2 7 and 9 prohibit political advertising which are unjustified limit on the respondents right under s 2(b)

Ratio Requirements for a policy being legislature in nature and constituting a limit “prescribed by law”:

o 1) enacted by a government entity pursuant to a rule-making authorityo 2) that is authorized by statute to make ruleso 3) sets out a general norm or standard of general applicationo 4) that is meant to be binding and o 5) is sufficiently accessible and precise

s 2(b) protects everyone from undue government influence but does not go so far as to place government under an obligation to facilitate expression by providing individuals with particular means of expression.

Reasons: Can the Charter Apply to public transit system? (s.32)

o GVTA is govt entity (see Applicability) Charter applicable to all activities of the GVTA Activity within S(2) (or other Charter rights)? YES ARE P’S EXCLUDED FROM 2B BASED ON FORM OF EXPRESSION? NO

o Govt argues that the claimants are invoking the Charter to place these government entities under a positive obligation to make buses available for their expression Use DUNMORE Principles

o To demonstrate this would have to show that the claimants themselves were excluded from the particular means of expression

o NO just the content, not requesting the government support or enable their expressive activity by providing them with a means of expression from which they are excluded

ARE BUSES EXCLUDED FROM 2B BASED ON LOCATION? NOo City of Montreal: Buses excluded from 2(b) because of form or location?o Historical or actual use: public streets are obvious place for freedom of expression

Does not impede the primary function of the bus as a vehicle for public transportation or undermine the values underlying 2(b)

DOES THE EXCLUSION OF POLITICAL ADVERTISING INFRINGE ON P’S 2B RIGHTS? YES CAN A POLICY BE A LAW WITHIN “PRESCRIBED BY LAW” IN S.1? YES

o Is the policy a law? YES because it is not meant for internal admin purposes IS THE INFRINGEMENT JUSTIFIED UNDER s. 1? NO

o Where a legislature has empowered a government entity to make rules, it seems only logical, absent evidence to the contrary, that it also intended those rules to be binding

Oakes test? Fails o Purported objective: safe, welcoming transit systemo Fails rational connection Difficulty seeing how an advertisement on the side of a bus that

constitutes political speech might create a safety risk or an unwelcoming environment for transit users

o Fails minimal impairment prohibiting things that “create controversy” is overly broad REMEDY: Neither P asked for a S 24 remedy—They asked for a Declaration

o It is more appropriate to deal with rules made by government entities under s.52(1) Not left on the books Rules of general application have broad effects (= broader remedy more appropriate)

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2: Freedom of Conscience and Religion R v Big M Drug Mart – What is freedom?Syndicat Northwest v Amselem – What is religion?Multani v Commission Scolaire Margeurite Bourgeoys – What Alberta v Hutterian Brethren of Wilson Colony – What MLQ v Quebec 2015 SCC – CONSCIENCE and religion – atheists are protected too!

Freedom of conscience and religion. S (2)(a) S 2(a) creates individual and collective rights Freedom of religion is often claimed for a community or organization, and sometimes even for a corp. SCC is very reluctant to delve into religious beliefs Prevents government to force compelling or abstaining from religion Freedom of religion can be limited when causes harm to others Multani

What is freedom of religion? What does claim require?Big M Drug Mart Freedom of religion is about being free from state coercion and at least includes freedom of religious speech,

including:1) right to entertain such religious beliefs as a person chooses2) right to declare religious beliefs openly and without fear of hindrance or reprisal3) right to manifest religious belief by worship and practice or by teaching dissemination4) characterized by the absence of coercion or constraint

Speaks on purpose of s 2(a):o Any individual be free to hold and to manifest whatever beliefs and opinions his or her conscience

dictates so long as they do not injure others or their parallel rights to hold and manifest beliefs/opinions of their own

o Equally protected are expressions/manifestations of religious non-belief and refusals to participate in religious practice

Government may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose.

To get into 2(a) you just need a sincere belief in something (religion or lack of)Does not have to be what anyone else believes, you just have to persuade court you are sincere.Religion (Syndicat) Freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and linked to

one’s self-definition and spiritual development, allowing to foster connection with divine or with object of spiritual faith.

Individual must show a sincere belief in the undertaking to connect (good faith, not capricious or fictitious)

Syndicat Freedom of religion claim requires:

o (1) A practice or belief, having nexus with religion, personal connection with divine or subject of spiritual faith irrespective of whether particular practice or belief is required.

Either objectively required OR subjectively believes that it is required by religion OR that they sincerely believe the practice engenders a connection to spiritual faith as long as practice has nexus w/ religion

o (2) Sincere belief Religious fulfillment is subjective and personal Just has to be LIKE religion, does not have to be one Does not matter if religion changed over time

Waiving freedom of religion must be voluntary, freely expressed, and with a clear understanding of the true consequences and effects of so doing if it is to be effective.

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Claimant need not show an objective religious obligation to invoke freedom of religion!!!Multani: Claimant of freedom of religion infringement must prove:

o (1) They SINCERELY belief in practice or belief that has a nexus with religion (not objective)o (2) Impugned conduct of third party interferes in a manner that is NON-TRIVIAL or NOT

INSUBSTANTIAL with their ability to act in accordance with that practice/belief

Who can claim freedom of religion?Big M Freedom of religion is a personal freedom and a corporation cannot have a conscience or a religious belief.

o Only people can apply under s 24(1) for Charter remedy.o People and corporations can apply for s 52(1) remedy for no force or effect.

If you are charged with an offence, you can argue invalidity based on federalism or Charter

What degree of infringement is permitted?Big M Drug Mart + Syndicat + Hutterian For an infringement, must be more than insubstantial/trivial.Hutterian Legislatures can only be asked to impose measures that reason and evidence suggest will be beneficial. No barometer to measure seriousness of particular limit on a religious practice.

Justification Hutterian Where you argue the EFFECT of the Law and its EFFECT on you. “You must be left with a meaningful choice” State must be neutral The only real issue in the court is whether or not the Alberta law could be justified. Here we have a s. 1 analysis

The real controversy here is at the last stage of the Oakes analysis (the cost/benefit analysis) This is rare because infringement cases usually resolved @ minimal impairment

The analysis is different when you get to cost/benefit In the earlier stages of the Oakes’ test, what you are measuring is purposes and objectives. In the

cost/benefit analysis, you are looking at EFFECTS – the EFFECTS of the law. When you are taking account of the EFFECTS of the law, you are measuring the impact of the law

on Charter values One of the EFFECTs here is that liberty of the Hutterites is being impacted The majority, speaking through McLachlin, says that the question here is whether the Hutterites

still have a meaningful choice as to their religious practice

R v Big M Drug Mart (SCC) 1985 - MEANING OF FREEDOM F: Respondent charged with unlawfully carrying on sale of goods on a Sunday, contrary to the Lord’s Day Act. They argue that the Act violates the Charter right to freedom of conscience and religion. Also, Act not valid criminal law, due to the division of powers. It is a provincial law but should be federal jurisdiction. C: Appeal allowed - the Act infringes on s 2(a) and is of no force or effect by reason of s 52(1).

Ratio: Freedom is both (i) the absence of constraint or compulsion and (ii) the right to manifest beliefs and practices. I: Is the Act unconstitutional?

o AG argues a company cannot have the right. But ability to possess religious belief is irrelevant to right itself.

o Act is coercive, inimical to the spirit of the Charter - imposes Christian beliefs on non-believers.o Sunday can still be a day of rest - it just can’t be imposed on all of Canada.

I: What is the meaning of freedom of conscience and religion?o Must take a purposive analysis of the provision [para 94, 95].

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o Inappropriate for government to intervene or constrain the individual’s conscience.

Syndicat Northwest v Amselem 2004 SCCF: Appellant (Amselem) set up a small hut called a “succah” on his balcony for a Jewish religious festival. The respondent (Syndicat) requested its removal, claiming it was in violation of the building’s by-laws about balconies, contained in the declaration of co-ownership. When appellants set up succahs the following year, the Syndicat filed an application for injunction.NB: Not a charter case b/c Syndicat is not government—it was brought under Quebec Charter

C: Appeal allowed - appellants can set up succahs.

Ratio Definition of religion: broad in the sense that it is subjective, but requires a supernatural being somewhere.

(2) s 2(a) claimant must show that:

o 1) He sincerely believes in a practice or belief that has a nexus within religion (1) he has a practice/belief which calls for a line of conduct, irrespective of whether that

practice/belief conforms with position of religious officials - i.e. subjective, and (2) he is sincere in his belief.

o 2) More than a mere infringement - conduct interferes with claimant’s ability to act in accordance with practice/belief in way that is non-trivial (no definition - just persuade court that infringement is non-trivial).

If an individual is going to waive a Charter right (although the court prefers he would not), he must do so voluntarily and with full understanding of what he is doing.

I: Do the clauses in the by-laws of the declaration of co-ownership infringe the appellants’ FOR? YES I: What is religion?

o Every individual allowed to hold/manifest beliefs and opinions of their own, dictated by own conscience.

o Courts are not arbiters of scriptural interpretation - not up to them to decide if individual is practicing her faith correctly. Individual just needs to hold an honest conviction in the relevant aspect of her faith.

o Should not need to prove the objective validity of their spiritual beliefs, nor is such an inquiry appropriate for a court to make. Court can only determine whether a claimant’s belief is sincere/credible.

o Honesty of a belief can be based on the claimant’s testimony as well as whether the belief is consistent with her other religious practices at the time of the alleged interference (not her past beliefs).

I: Was respondent’s refusal justified by its reliance on co-owner’s rights to enjoy property - Quebec Charter?o Intrusions on the respondent’s rights are minimal and insufficient to justify imposing limits on the

appellants’ religious freedom. I: Did the appellants waive their right to freedom of religion by signing the declaration of co-ownership?

o Declaration actually states that co-owners can erect structures with consent of other co-owners - it is not an absolute prohibition. So it is not a waiver of rights - just a recognition of the need for consent.

o Even if it was a waiver, appellants did not have a real choice in signing it, so they could not waive their religious freedom away on this basis.

Not a charter case b/c Syndicat is not government—it was brought under Quebec CharterNo difference b/t Canadian Charter and Quebec Charter as far as freedom of religion is concerned—so we treat it as a Canadian charter case, despite fact it is not gov’t

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Multani v. Commission Scolaire Marguerite -Bourgeoys, 2006 SCCF: This is an administrative decision. There is no problem with the law. The only problem is with the application of the law to this boy. No one is arguing that the kirpan is not a weapon. But the order not to wear it is argued to be an infringement of s 2(a). Multani applies to the courts for a declaration that this is an infringement, and he wants an injunction to prohibit the enforcement of the order. The consequence of the order is that the boy cannot go to the school.

Ratio When the validity of a general rule of application is not in question, there is no need for a constitutional

analysis and the mechanisms of administrative law are all that are needed. o If something is a law, do a full Oakes analysis; but if it is just a decision being challenged, then

Dore. for a claim to freedom of religion to succeed, an individual should show he/she believes a practise is

connected to a religious belief. Next, the infringement of freedom of religion should be serious.

I: Does prohibiting a student from wearing a kirpan to school (as required by his religion) infringe his freedom of religion? If it does, is the infringement a reasonable limit that can be justified by the need to maintain a safe environment at school? Singh need only show his personal and subjective belief in the religious significance of the kirpan is sincere.

o Necessary according to Orthodox Sikhism; Kirpan not to be used to harm others He has shown this, and interference with his freedom of religion is neither trivial nor insignificant [para 40]. When the validity of a general rule of application is not in question, there is no need for a constitutional

analysis and the mechanisms of administrative law are all that are needed.o - Resolved by Dore - if something is a law, do a full Oakes analysis; but if it is just a decision being

challenged, then Dore. o - Whether you take the administrative approach or the Oakes analysis, you ought to come out with

the same conclusion.

C: Prohibition infringes s 2(a), not justified under s 1 because prohibition does not minimally impair rights.• School council’s decision should be declared null under s 24(1) remedy - administrative body. Possibly some other remedy could have been requested using s 24(1), but nothing else was asked for. There might have been a chance of damages for the cost of sending the boy to private school.

Alberta v Hutterian Brethren of Wilson Colony (2009) -- PROPORTIONALITY F: Religious group objects to having photos taken for driver’s licenses; province offers to just store photos in data bank, but group still objects. Argue infringes on freedom of religion. • For purposes of prevention of identity theft, Alberta decided that every driver needed a picture taken for their license. There was an exemption for religious objectors until 2003.

C: Appeal allowed - the regulation is constitutional.

Ratio Where the right is one that must be fully respected without compromise (i.e. s 2(a)), third stage of

proportionality analysis will turn on whether deleterious effects are out of proportion to the public good achieved by the infringing measure.

o If there is no meaningful choice left for religious group, then costs outweigh the benefits. “Trivial or insubstantial” interference is that which does not threaten actual religious beliefs or conduct.

I: Is the infringement justified under s 1? Setting up a system that minimizes risk of identity theft is a pressing and important public goal. Third step of proportionality analysis split the court - are the overall effects of the law on the claimants

disproportionate to the government’s objective? - Where the right is one that must be fully respected without compromise (i.e. s 2(a)), this stage will

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turn on whether deleterious effects are out of proportion to the public good achieved by the infringing measure.

- If there is no meaningful choice left for religious group, then costs outweigh the benefits. - The first two stages of the proportionality test deal with the purpose of the law. - But the third stage deals with the actual effect on the individual or the group.

I: Does the benefit outweigh the cost? Benefit is that it makes the province more able to prevent identity theft. Cost for Hutterites is that either they break their commandment or they do not drive. Today it is impossible to eliminate all costs to religious groups because religion touches so many facets of

daily life. It is inevitable that some religious practices will conflict with regulatory systems. If they don’t get to drive, the cost is that they’ll lose some of their self-sufficiency. McLachlin says they

could just hire someone to drive for them, which carries some inconvenience, but not too high. Different judges will weigh the cost/benefit differently.

- Majority finds that financial and inconvenience costs did not preclude their self-sufficiency, and these costs were not as important as preventing identity theft.

- DISSENT: (Abella J) says there is no evidence for the benefit, and it is just speculative. The costs are high, so as far as the dissent is concerned, the Hutterites should win.

R v Bryan said that evidence could be minimal, but that depends on whether the judge wants evidence or not. If you can produce some evidence, that will always be better. And especially do not suppress evidence if you have it. Just because there is a trend, that does not mean that every case is going to be the same.

“Trivial or insubstantial” interference is that which does not threaten actual religious beliefs or conduct [para 32].

Loyola High School v. Quebec, 2015 SCCFacts: Private catholic (English speaking) school for boys in Quebec—around since 1840. Quebec (aggressively secular) created the ministry of education, which mandated a course on “Ethics in Religious culture”. This course was intended to teach about ethics and beliefs of different world positions from a netural and objective perspective. The ministry provided that if an educational institution had an equivalent course, they could apply for an exemption from the mandatory course. Loyola applied for an exemption, and they were refused by the Minister. They asked for judicial review of an administrative decision.

Issue: whether there can be such a thing as institutional freedom of conscience and religion? (Both minority and majority talk about this)

Decision: majority agrees in result, but remitted the matter to the minister, to allow him to make the decision again and to “do it right this time”. Minority, not dissent, makes the decision for the minister.

Ratio Freedom of conscience and religion is not limited to individuals

o Majority: there is a collective element to FOR which allows institutions to claim ito Minority: religious organizations, can claim benefit of s.2(a)

Reasons Abella declines to decide whether an educational institution has freedom of conscience and religion. But

there is a collective element to freedom of conscience and religion ie. no need to decide whether Loyola itself is making a claim because of collective element.

Mclachlin: says affirmatively, religious organizations, including educational institutions, can claim the benefit of S.2(a).

MLQ v Quebec 2015 - INCLUDES ATHEISTS F: Saguenay commenced all city council meetings with a prayer. MLQ and Mr. Simoneau objected - they were atheists/agnostic, and were offended by this practice. Complained under Canadian Charter and Quebec Charter. The case is decided mostly based on the Quebec

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Charter, but we know that the pertinent section of the Quebec Charter is governed by the same principles as s 2(a), so it is applicable.

After Simoneau complains, Saguenay adopts a bylaw changing wording of the prayer, and two minute delay between prayer and commencing the council meeting. So anyone who objected had two minutes to get into the council meeting.

A Human Rights Tribunal had declared the bylaw to be inoperative and invalid, and awarded Simoneau damages and ordered Saguenay to remove all religious symbols from the city council building.

Decision: Right is impaired – adhering to certain religious beliefs to the exclusion of others. Breaching state’s duty of neutrality. Restores damages awarded by human rights tribunal. Argument was under Quebec Charter so could not strike bylaw down.

Ratio: s 2(a) includes freedom of conscience - atheists are also entitled to “religious” freedom.

Reasons Sponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to

discrimination against all other such traditions State neutrality:

o Requires that gov’t neither favour nor hinder any belief, and the same holds true for non-beliefo Denies others’ equal worth, required in free and democratic societies o By expressing no preference, the state ensures that it preserves a neutral public space that is free of

discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally

o Must abstain from taking a position Infringement is more than trivial or insubstantial

o Attempt to accommodate exacerbated the discrimination Non denominational nature of the prayer rejected argument

o Still religious, even if non-denominational – so effect on non-religious is more than trivial Prayer in House of Commons Rejected

o No evidence on purpose of prayer in Houseo Circumstances are different, and its possible that House’s prayer is subject to parliamentary

privilege

CasesTopic Case Short Description

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IJI 1) Winner: IJI successful2) Tessier: unsuccessful3) Bell: successful4) Ordon: successful5) CWB: unsuccessful6) PHS: unsuccessful7) Marine Services: unsuccessful8) Rogers: successful

1) Busses, fed. work/undertaking2) Cranes, derivative jurisdiction3) Pregnant Worker, “affects”, not “impairs”4) Boating accidents, new version of IJI5) Insurance and banking, “impairs”6) Insite, prov. IJI7) Fisherman death, does not “impair”8) Antenna siting, impairs core of radiocommunications

Paramountcy

1) Moloney: successful2) CWB3) Marine Services

1) Bankruptcy + driving, operational conflict2) Insurance and banking, no equivalent fed. law3) Fisherman deaths, no conflict or frustration

CHARTER CHARTER CHARTERApplicability 1) Dolphin

2) Torstar3) Mckinney4) Eldridge5) Godbout

1) Picketing, leg. and exec. NOT judiciary2) Charter value arguments in common law cases3) Universities, gov’t control test4) Hospitals, gov’t function test5) Municipalities, if gov’t, all actions subject to Charter

Justification 1) Oakes2) NS Pharma3) NAPE4) Dore

1) Narcotics, Oakes test2) Pharmacies, “unduly” vagueness3) Pay equity, budgetary considerations4) Angry letter writing, Dore test

Remedies 1) Schachter2) Vriend3) Ferguson4) Ward5) Conway

1) Adoptive parents, remedies crash course2) Gay Catholic teacher, reading in3) Mandatory minimums, s.24(1)4) Damages available under s.24(1), just 5) Mental health facility, court of competent jurisdiction

FOE 1) Irwin2) Butler3) City of Montreal4) Bryan5) Baier6) BC Freedom7) GVTA

1) Advertising to children, definition of expression2) Porn, “core” of FOE3) Noise bylaw for club, “location” test4) Election results, political expression at core5) School boards election, access to expressive platform6) Election donations, read down where possible7) Political ads on buses, “policy” as law test

FOR 1) Big M2) Syndicat3) Multani4) Hutterian5) Loyola6) MLQ

1) Lord’s day act, Meaning of freedom 2) Succah plants, meaning of religion, test3) Kirpan, Dore approach for admin. Decision4) No pictures allowed, proportionality5) Private catholic school exemption, institutions6) Prayer, atheists are protected under S.2(a)

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