February 19, 2008Ian Greene

Canadian Constitutional & Administrative Law

• Comments on outlines• Questions• Impact of the Charter on legal rights (ss 7-14 – from Greene

Ch 5 on secure web page)– Valente– Hunter v. Southam– Singh– Operation Dismantle– Therens– B.C Motor Vehicle Case– Morgentaler, Borowski, Tremblay v. Daigle– Askov

Schedule for tonight

Schedule (continued)

• Impact of the Charter on democratic rights– Sauvé

• Impact of S. 35 of the Constitution Act, 1867– Calder, Sparrow, Delgammukw

• Impact of the Charter on Fundamental Freedoms– Big M, Edwards Books & Art

• Quebec Secession Reference

Legal Rights• S.7: right to life, liberty, &

security of person unless deprived thereof through fundamental justice

• s.8: Unreasonable search and seizure is forbidden.

• 9. Arbitrary (illegal) detention or imprisonment is forbidden.

• 10. Everyone who is arrested or detained has the right: – a) to be told why immediately – b) to retain a lawyer and be told

of this right

– c) habeas corpus (to be freed if illegally detained)

• 11. Persons charged with offences have the right – a) to be informed reasonably

quickly of the charge – b) to a trial within a reasonable

time – c) not to be a witness against

oneself – d) to be presumed innocent

until proven guilty before an independent and impartial judge

Legal Rights (2)

– e) to bail unless unreasonable – f) to trial by jury if liable to 5 yrs in jail

• 12. No one can be subjected to cruel or unusual treatment or punishment.

• 13. Evidence given by a witness in court can't be used against that witness later on.

• 14. Everyone has a right to an interpreter.

Valente, & Hunter v. Southam

Valente (1985)1981: Walter Valente charged with

dangerous driving; Valente wanted to stay out of jail

Valente’s lawyer argued that provincially-appointed judges aren’t “independent” according to S. 11(d) of Charter because they don’t have the protection of Ss 96-100 of CA, 1867

The decision established that there are 3 “essential conditions” for jud ind:

– security of tenure: there must be impartial inquiry before a j can be removed

– financial security: legislated right to a salary

– institutional independence: judges must control those aspects of case flow directly affecting adjudication

Hunter v. Southam (1984)Combines inv branch searched

Edmonton Journal in 1982. S. 8 Charter case.

1984 in SCC: “reasonable” search: authorized by statute, conducted after search warrant issued (unless unrealistic), search warrant issued by an impartial party

Singh (1985)• Refugee determination process

– pre-Singh: those not approved abroad apply at airport; examined by an officer; transcript sent to Ref St Adv Comm. Rec to Min. Ap allowed to Ap Bd; can det with minister’s evidence and transcript, & no oral hearing

• Both Charter & Bill of Rights issues– court requested additional

submissions on Bill.– Impugned: ref det process under

Imm Act

• Wilson: decided under s. 7 of Charter. “Everyone” covered.– Is it life, liberty or sec of person

at stake here? Sec of person.– Is this violation in accord with

fundamental justice? No.• Fundamental justice nat

justice prin of “hear both sides.” App has a rt to know case against self, and reply to it. Therefore, oral hearing required.

– S. 1: crown presented no arguments.

Singh (2)• Beetz: Bill of Rights still there

– right to “a fair hearing acc to fundamental justice to det rights and obligations” violated

– Beetz strikes down part of Immigration Act; other judges concur

– decision resurrects the Bill of Rights. Beetz also refers to statutory bills of rights as “constitutional or quasi-constitutional.”

• After Singh:– Fed gov’t totally unprepared– backlog in ref cases: 3 yrs– some took advantage of backlog;

some bona fide refugees stopped at border (Charter does not apply outside)

– May 1987: C-55, “safe 3rd cty”– C-84: apprehend ships at sea;

penalty for assisting ref applicants who had not applied abroad

– tremendous opposition to bills– CRDD created, but members mostly

patronage appointments then

Operation Dismantle (1985)• 1983: peace groups challenged

cabinet decision to test U.S. cruise missiles; violates s. 7.

• 1985: SCC decision• Argument: testing will destabilize

status quo, making Canada vulnerable to attack from Soviet Union

• Issues– Are cabinet decisions subject to

the Charter, even when under the prerogative power? Yes: S. 32 includes “government,” broadly defined

– Are politicial issues justiciable?• This is a U.S. approach• Any legal issue is justiciable in

Canada

– Should the case proceed to trial?• Dickson: no, because the

arguments of the peace activists are speculation; no proof that s. 7 would be violated. No legal issue, no standing. Wilson: need proof that the tests would violate s. 7 rights of specific individuals

– Use of Charter for publicity purposes

Therens (1985)• 1982: Therens collided with tree

in Moose Jaw; taken to police station for breathalizer test. Not told of right to counsel.– If he’d refused test, would have

been charged with refusing: same penalty

• Police didn’t inform because operating on Bill of Rts precedents: requesting a breath’zer test not “detention.”

• Le Dain: B of Rts precents don’t necessary apply to Ch

• Is preventing contact with counsel a “reasonable limit?”– No: not “prescribed bylaw,” and

there’s time in 2 hrs.

• Would admitting the evidence bring admin of justice into disrepute? (s. 24 - 2)?– Majority (Estey): yes– Dissent on this issue: Le Dain

says admit evid here; exclude in future. McIntyre dissented too: not to admit brings admin of justice into disrepute.

• Aftermath: 1000s of cases dropped

B.C. Motor Veh Act Case (1985)

• 1982: BC gov’t created an “absolute liability” offence: if you drive with license suspended, automatic jail term. Mens rea not applicable.

• Issue: does an ab liab offence violate “fund justice” in s. 7 of Charter?

• BC gov’t sent ref question to BC CA in 1982; app’d to SCC

• Should “fundamental justice” be interpreted in a procedural or substantive way?

• Procedural: life, lib and sec of person can always be limited, if correct procedures followed

• Substantive: in some cases, even correct procedures cannot justify limiting life, lib or sec of person

• debates in Parliament: framers wanted S. 7 interpreted in a procedural way; fear of repeat of “Lochner era” in U.S., where U.S. js interpreted “due process” in a substantive way, and stopped social welfare reforms

B.C. Motor Veh Act Case (2)

• Lamer: legislative history should be admitted but given “minimal weight,” as no proof that a maj of MPs and Senators agree with the views of some

• Lamer: combination of an absolute liability offence, and a jail term, results in a violation of fundamental justice.

• S. 1: it’s possible that the crown could prove a reasonable limit, but crown did not present any evidence on this issue.

• Therefore, a “reasonable limit” has not been established.

Morgentaler (1988)

• Issue: does abortion section of Crim Code (251) violate s. 7?

• 5 to 2: yes, but 3 different opinions:– Dickson, Lamer: 251

violates sec of person; inadequate procedural safeguards. No Dn of “health.” S1 Obj: “life and health” of preg women. Fails rational connection test.

– Beetz, Estey: Violates sec of person; hosp requirement unnecessary; committee too restrictive. “Health” Dn not a problem. S1 Obj: “protection of fetus.” Fails rational connection test.

– Wilson: Violates sec of person, and defects substantive. Also, violates “liberty.” No fundamental justice. S.1 Obj: protect fetus. Can’t limit fr of conscience during first trimester.

• McIntyre: defer to Parliament (LeDain agrees).

Borowski (1989)

• Issue: Does s. 251 violate the rights of the fetus? B. wanted declaration that “everyone” in s. 7 and “every indiv” in s.15 includes the fetus.

• Unanimous decision written by Sopinka:

• Borowski’s case is moot. Developed a test for mootness:– is there a live controversy? If

not, should court hear case anyway?

– Judicial economy– Traditional role of jud.

• Issue of standing: Borowski no longer had it

Tremblay v. Daigle (1989)• Lived together 5 months; separated

partly because of Tremblay’s violence • Daigle 18 weeks pregnant; wanted an

abortion • Tremblay: • -went to Que Sup Ct to request

injunction to stop abortion. • Argued fetus is “human being” under

Que Ch of HR & Frs, and under Que Civil Code

• Judge granted injunction. Conflict bet fetal rts & D’s rights under s. 7 of Charter; fetal rts take precedence

• Daigle appealed to Que Ct of Ap & lost.

• At 21 weeks pregnant, applied for lv to ap to SCC. SCC hd quickly on Aug 1; granted lv and scheduled hearing for Aug 8

• 4 intervenors on each side • just after lunch break, D’s lawyer

announced D had just had an abortion. Even though moot, wanted ct to continue

• Ct continued. • Court announced decision “from the

bench” after hearing: Daigle won. Reasons came later

Tremblay v. Daigle (cont’d)• Decision “of the court.” All 9

judges participated • even though Que civil code

provides for the appointment of a “curator” for a fetus, the order can’t take effect unless the fetus is born alive.

• A fetus has to be born alive before it can have rights either under the Que Ch of HR, or Canadian Charter

• Admittedly, there is room for interpretation, but on a matter so crucial, the Quebec legislature would have been clear if it intended the Que Ch of HR & Frs to apply to fetuses.

• Quebec’s AG intervened, but only to argue for the right of provinces to legislate on certain matters related to abortion.

• Tremblay lost because the fetus is not clearly covered by the Que Ch of HRs and Frs, and therefore there’s no legal cause for action.

Askov (1983-1990)• Issue: 11(b) rt. to trial within a

reasonable time• In this decision, court developed

the “Askov” test for unreasonable delay. Consider– length of delay– explanation of delay– was there a clear waiver of right

to trial within reasonable time?– has the delay prejudiced accused

(hurt the case of the accused)?

• In this case:– length of delay is unreasonable– the cases of Askov et al have

been prejudiced– explanation: Delays in Peel are

shocking. Relies on Carl Baar’s evidence

– no clear waiver of right

• Baar’s 1993 article commenting on Askov:– judges misinterpreted the stats

(Can Bar Rev 1993)

Sauvé (2002)

• Impugned legislation: Canada Elections Act, which prohibited prisoners from voting if they were serving more than 2 years.

• (First Sauvé case was in 1996. Then, prisoners couldn’t vote at all. Re-enacted with 2 year limit)

• Majority opinion by McLachlin (supported by 4 others)

Sauvé (2)

• Oakes test– What’s the objective of preventing prisoners from voting? – Majority: the objective is too broad so cannot be

considered substantially important.– As well, no rational connection between objective and

means used, no minimal impairment of rights, and more harm than good is done by preventing prisoners from voting

– Social science evidence not used effectively by government, but effectively by Sauvé

Aboriginal Rights Cases• S. 91(24) of CA 1867: Indians, and Lands

reserved for the Indians.• S. 35. (1) The existing aboriginal and

treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.– (2) In this Act, "aboriginal peoples of

Canada" includes the Indian, Inuit and Métis peoples of Canada.

– (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

– (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

– s. 25 of Charter The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

Calder (1973)

• Calder (1973)– Nishga claimed 1000 sq. miles in northwest B.C.– Judson & 2 others: no title for Aboriginals. They are wards

of state – Hall/Laskin & 1 other: Aboriginal people have

usufructuary rights over lands traditionally occupied– Pigeon: Nishga can’t sue without crown’s permission– Calder’s near win encouraged aboriginal Canadians to

lobby for constitutional changes that would protect treaty rights. Result: S. 35(1) of CA, 1982 and S. 25 of Charter.

Sparrow (1990)• Issue: Sparrow was fishing

with drift net too big for regulations

• Court’s Decision:• Regulated rights are not

extinguished, therefore still exist under 35(1).

• Valid regulation must be justified as honouring trusteeship duty.

• Test: – 1) Does impugned regulation

interfere with aboriginal right?– 2) Justification:

• Is the legislative objective valid?

• Is trustee relationship honoured?– Is infringement as little as

necessary?– If expropriation, is

compensation fair?– Have aboriginals been

consulted?

Delgammukw (1997)

• Issue: Gitksan and Wet’suwet’en claimed 58,000 sq. km. of land in northern B.C.

• Questions to be resolved:– 1) whether the claims were

properly before the court. Yes, but new trial required.

– 2) whether the SCC can interfere with the trial judge’s factual findings: Yes.

– 3) what aboriginal title is protected by 35(1), and is infringement acceptable?

– Governments have a fiduciary duty toward aboriginal people. Infringement of title is acceptable only if demonstrably justified through reasoning similar to Oakes test

Big M Drug Mart• Impugned: Lord’s Day Act

– Calgary drug store challenges Act as violation of S. 2• Does Charter apply to

corporations?• “everyone” in S. 2 (fund

freedoms) and “anyone” in S. 24 (remedies) includes legal persons

• Bill of Rights precedents– Does Robertson & Rosetanni

apply?– Dickson: Charter doesn’t simply

“recognize and declare” existing rights. Applies to present & future legislation

– Do we look only at effect of impugned legislation, as in Robertson & Rosetanni?

– No: purpose equally important. Purpose is clearly to promote particular religious observances (from 1677)

• Purpose of Charter: tolerance, freedom, equality. – Freedom is founded on “respect

for the inherent dignity and the inviolable rights of the human person.”

– “Purposive” approach to application of Charter

Big M (2)• Freedom of Religion

– What is purpose of freedom of religion?• History: forcing religious belief

does not work• Christians realized that their

religion demands tolerance. Everyone given a conscience by God; to compel belief therefore dishonours God

• rel minorities need protection from tyranny of the majority

• Preamble to Charter: “Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

• Act therefore violates s. 2. Can it be saved by s. 1?– Crown arguments:

• need a day of rest conforming with needs of majority.– Dickson: No; Charter is to

protect religious minorities

• society needs a weekly day of rest so families can spend time together.– Dickson: good argument, but

that’s a provincial responsibility. LDA was a federal law under criminal power. Now only provinces can regulate.

R. v. Edwards Books and Art (1986)

• Prov. Sunday closing legis co-existed with Lord’s Day Act (double aspect doctrine)

• Ontario Retail Business Holidays Act – challenged by Edwards Books &

Art, & 3 others– most retail business must close

Sundays. However, those with less than 5000 sq ft and less than 8 employees can stay open, if closed on Saturdays

– Objective: create a weekly holiday generally available

• Dickson: – no religious purpose, so no direct

violation of S. 2– there’s an indirect and

unintentional violation, because legislation places a greater burden on non-Sunday observers

• Section 1 Analysis:– Part I of Oakes Test: is objective

substantially important? Yes.

Edwards (2)– The opportunity for families to

spend time together is “a pressing and substantial concern.”

– Second part of Oakes test:– Dickson:

• a) rational connection: if objective so important, why are there so many exceptions (eg. factories non-retail businesses). 1970 Ont Law Ref Comm Rep: unions, need for entertainment on Sundays. Rat conn test is passed.

• b) minimal interference of rights:

• Alternatives: 1. Anyone can refuse work on Sundays. 2. Those employers with religious convictions can choose closure day. 3. Remove size restriction for Saturday observers. All alternatives inadequate, so test is passed.

• Dissenters: Wilson: favoured 3rd alternative. “duty to accommodate” already there. Beetz: All that’s needed is right not to work on Sundays. La Forest: Cts shouldn’t second-guess legislatures.

• c) overall balance: majority agree test is passed

Québec Secession Reference (1998)

• Stéphane Dion– Critical of “yes” side in 1995

referendum– Asked by PM to become Min

of Intergovernmental Affairs in 1996 & context by-election

– Proponent of “Plan B:” fed gov’t should be active in opposing Québec separatism.

• Guy Bertrand (a former sovereignist leader in Québec turned federalist)– began a litigation process in

which challenged the Québec government’s attempts to institute sovereignty on Charter of Rights grounds.

– Québec government tried to block Bertrand’s challenge, so fed gov’t continued the litigation through the reference (part of “Plan B”)

Québec Secession Reference (2)• Argued in Feb, 1998

– Québec gov’t wouldn’t participate, so SCC appointed André Joli-Cœur as amicus curiae.

– Amicus argued that reference jurisdiction of SCC is ultra vires.• Can an appeal court be given

original jurisdiction? Yes.• Can an appeal court advise?

In Canada, yes (despite rule about no specific mention).

• Justiciability:– Too theoretical?– Too political?– Not ripe?

• Canada does not have as strict a separation of powers as U.S.

• Advisory opinion different from a litigated case.

Québec Secession Reference (3)• Questions:

– 1. Under Can Const, can Québec secede unilaterally, without a constitutional amendment?

– 2. Under Int law, can Québec secede unilaterally?

– 3. If conflict between (1) and (2), which takes precedence?

• Why did SCC write such a lengthy judgment?

• 1. Can Québec secede unilaterally under constitution?– Arguments in favour based

on democracy.– What is democracy?– Our democracy is based on

shared values, and unilateral secession puts these at risk. Thus, duty to negotiate.

– Was SCC too activist, or not activist enough re “clear question” and “clear majority”?

Québec Secession Reference (4)• 2. Does international law

give Québec the right to secede unilaterlally?– Amicus: right to self-

determination belongs to all “peoples.”

– Do Québeckers constitute a “people”?

– SCC: not necessary to decide, because even if yes, the right only exists where a “people” is mistreated.

• right to only arises under international law where “a people” is governed as part of a colonial empire, “is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.”

Québec Secession Reference (5)

• Spring of 2000: Bill C-20: “An Act to give effect to the requirement for clarity….”– Within 30 days of a prov

legislature tabling a referendum question, H. of C. must declare whether question is “clear.”

– If question considered “clear,” and a majority votes in favour, H of C must determine whether majority is “clear.” Consider:• Size of majority• Proportion voting• Views of political parties• View of Senate

Québec Secession Reference (6)• After SCC decision: PQ

gov’t seemed to support decision.

• Jacques-Yvan Morin (former Québec intergovernmental affairs minister): SCC decision means feds can’t refuse to negotiate, but can put up many obstacles to Quebec secession.

• Peter Hogg: – Québec can no longer

claim that it can secede unilaterally.

– The “duty to negotiate” secession in face of a “clear majority” vote in favour in a province is unprecedented in world history.