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Canadian Constitutional Law Section B: March 9, 2013


Canadian Constitutional Law Section B: March 9, 2013 Judicial Decisions on the Charter of Rights Course Director: Ian Greene Monahan Ch 13 (Ian Greene) 1968: Trudeau ... – PowerPoint PPT presentation

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Title: Canadian Constitutional Law Section B: March 9, 2013

Canadian Constitutional LawSection B March 9,
  • Judicial Decisions on the Charter of Rights
  • Course Director
  • Ian Greene

Monahan Ch 13 (Ian Greene)
  • 1968 Trudeau became PM. He wanted
  • stronger federation
  • patriation of constitution
  • Const. Charter of Rights
  • better-protected language and mobility rights
  • 1970 Molgate-MacGuigan Committee found strong
    support for a const. Charter
  • 1971 Victoria Charter
  • agreement for Ch and pat.
  • opposed in the end by Quebec and Alberta
  • 1976 PQ elected in Quebec
  • 1980 Referendum
  • Trudeau promised renewed federalism
  • 1981
  • negotiations no agreement
  • unilateral patriation attempt
  • reference to 3 Prov Cts of Appeal appeal to SCC
  • SCC Ruling
  • legal, but breaks convention
  • Nov. 1981 const conference
  • compromise

November 1981 compromise
  • Patriation of constitution with the amending
    formula favoured by most of the premiers (the
    7-50 formula), but which Trudeau had opposed
  • acceptance of a constitutional Charter of Rights
    which would contain a notwithstanding (non
    obstante) clause
  • Trudeau insisted that the notwithstanding clause
    not cover language rights, minority language
    education rights, or mobility rights
    notwithstanding clause would have a 5-year limit

The Charter of Rightsbecame law April, 1982
  • 1. Limitations clause
  • 2. Fundamental freedoms
  • conscience and religion
  • thought, belief, opinion expression
  • press and other media
  • peaceful assembly
  • association
  • 3-5 Democratic rights
  • citizens right to vote and run for office
  • 5 yr limit to life of H of C or prov. Assembly
    except during war etc. if supported by 2/3 vote
  • sitting of Parliament, and prov. Legislatures, at
    least every 12 months

Mobility and Legal Rights
  • 6. Mobility rights
  • 1. to enter, remain, leave
  • 2. to move within Can. and pursue livelihood,
    subject to laws that dont discriminate and
    residency provisions, and restrictions in
    provinces of high unemployment
  • 7-14 Legal rights eveything in Bill plus
  • freedom from unreasonable search or seizure (s.
  • trial within reas time
  • jury trial if liable to 5 years imprisonment
  • no retroactive offences
  • no double jeopardy
  • least punishment if law varied

Equality and Language
  • 15 Equality before and under the law
  • without discrimination based on race, national or
    ethnic origin, colour, religion, sex, age, mental
    or physical disability
  • Affirmative action programmes OK
  • 16-22 Language
  • supplements S. 133 of CA, 1867, which is still in
  • applies to Canada (fed) and New Brunswick only,
    though other provs can opt in
  • Eng Fr official langs
  • Debates, statutes, Hansard in 2 langs
  • Eng or Fr can be used in courts
  • right to receive services or communicate in
    English or French with govt

Minority Lang Education, remedies
  • 23 Minority lang ed
  • citizens whose first lang is Eng or Fr, or who
    attended prim school in Eng or Fr, have right to
    educate children in that lang.
  • Siblings rights
  • applies where numbers warrant
  • 24 remedies
  • (1) ...such remedy as the court considers
  • (2) evidence may be excluded if its collection
    violated a right, if admitting it would bring
    the administration of justice into disrepute

  • 25 aboriginal and treaty rights not reduced by
    charter, including rights under Royal
    Proclamation of 1763, and land claims agreements
  • 26 other existing rights not reduced by Charter
  • 27 multicultural heritage of Canadians to be
    kept in mind when interpreting the charter
  • 28 equal guarantee to males and females (this
    section isnt covered by the notwithstanding

General (continued)
  • 29 denominational school rights in CA, 1867 not
  • 30 Territories included, now and later
  • 31 Charter does not extend legislative powers
    it is a limit
  • 32 Application to Parl, legislatures, govts (
    3 year delay for s. 15)
  • 33 a notwithstanding clause can be inserted
    into legis. re ss. 2 or 7-15 5 year limit can
    be renewed
  • 34 ss. 1-34 of CA, 1982 cited as the Charter of
    Rights and Freedoms

The Charter and Its Critics
  • The Charter undermines legislative supremacy
    therefore democracy
  • Mandel elected legislators are closer to the
    needs of the poor and oppressed. Judges are
    business-oriented. No Charter decision has/will
    benefit the disadvantaged
  • Morton-Knopff Judges may be captured by
    special interest groups, mostly on the left.
    This subverts democracy.
  • Charter erodes participatory democracy. Human
    rights can only be protected by the vigilance of
  • Cost of litigation compared to the political
  • Lavigne case NCC spent 500,000 unions
  • OFVAS case why didnt artists use political
    process to change Ont censorship law? Didnt
    know how. (But think of cost of lobbyists)
  • S. 33 override is undemocratic

Charter Critics (2)
  • Charter litigation focuses attention on cases
    that happen to get to court, not necessarily most
    imp issues for society (Dean Monahan, Osgoode
    Hall Law School).
  • Cts should interpret Ch to promote democracy
  • Courts are inappropriate for making policy on
    human rights
  • Stare decisis is backwards looking, compared with
    the possibility of forward-looking policy
    formation processes in public service/legislature
  • eg. Appropriate procedure for determination of
    refugee cases
  • Schachter case (changes to parental leave policy)
  • Adversary system
  • govt lawyers argue for a narrow interpretation
    of Charter, whether or not this is govt policy
  • courts rely on arguments from counsel.
    Sometimes, no section 1 arguments
  • Do judges get a complete analysis of the issues?

Charter critics (3)
  • Backgrounds of judges
  • older than average adult
  • disproportionately married with children
  • predominantly male
  • New Canadians and Aboriginals under-represented
    on bench
  • most from business or professional family
  • tend to be successful
  • appointment process for Prov Courts and prov.
    Superior courts improving. Elevation procedure,
    and SCC secretive
  • Similar problems with lack of representation in
    legal profession

Oakes Test for Section 1
  • S 1 of the Charter The Canadian Charter of
    Rights and Freedoms guarantees the rights and
    freedoms set out in it subject only to such
    reasonable limitsprescribed by law as can be
    demonstrably justified in a free anddemocratic
  • The Oakes test has two parts
  • First, the objective of the government in
    limiting a right must be of sufficient importance
    to society to justify encroachment on a right.
  • Second (proportionality test), the limit must
    be reasonable and demonstrably justified in terms
    of not being out of proportion to the government
    objective, and must therefore satisfy three
  • (a) it must be rationally connected the
    government objective, and not "arbitrary or
    capricious (rational connection test)
  • (b) it should impair the right as little as is
    necessary to achieve the government objective
    (minimal impairment test) and
  • (c) even if all of the points above are
    satisfied, the effects of the limit cannot be out
    of proportion to what is accomplished by the
    government objective in other words, the cure
    cannot be allowed to be more harmful than the

  • Monahan Ch 14 (439-460) Ketevan Tkabladze
  • Monahan Ch 14 (460-475) Leah Godin
  • Case 22, The Queen v. Big M Drug Mart (freedom of
    religion, 1985) Stacey Berry
  • -Case 24, The Queen v. Oakes (1986) Helga
    Gonzalez Leyton
  • Case 25, Morgentaler v. The Queen (abortion,
    1988) Aleem Maginley

Presentations continued
  • Case 28, R. v. Keegstra (hate speech, 1990)
    Suren Ganeswaren
  • Case 31, RJR-MacDonald Inc. v. Canada (AG),
    (advertising, 1995) Monica Ahmed
  • Case 34, Sauvé v. Canada (prisoners voting
    rights, 2002) Kyi Kyi Thin
  • Case 36, Chaoulli v. Quebec (AG), (right to
    adequate health care, 2005) Faud Adbi

Presentations (continued)
  • Case 37, Health Services and Support (SCC
    overrules a previous decision and expands labour
    rights, 2007) Parastoo Aznavehzadeh
  • Case 39, Delgamuukw v. BC (aboriginal land claim
    rights, 1997) Maiwand Noor
  • Case 40, R. v. Marshall (aboriginal
    constitutional fishing rights, 1999) Obaid Daud

Presentations (continued)
  • Case 48, Ref. re Secession of Quebec (principles
    of Canadian democracy, 1998) Lil Manger
  • Canada (Attorney General) v. PHS Community
    Services Society, 2011 SCC 44 (Insite decision)
    Farrah Zandnia

Monahan Part Six (Conclusion)
  • Is Quebec secession as much of an issue now as in
    the past?
  • Problem with power imbalance between legislative
    and executive branches would senate reform
  • Shift away from constitutional concerns to
    economic concerns
  • What viewpoints do you think Patrick Monahan will
    bring to Ontarios role in Canada in his new role
    as Deputy Attorney General?

Greene, The Charter of Rights, Ch 5
  • General trends in legal rights decisions by the
    Supreme Court
  • Capital punishment and the Burns case (2001)
  • Fighting Terrorism while respecting human rights
    Charkaoui (2007 2008) and Khadr (2008 2010)

Course evaluations
  • Need a class rep to collect the evaluations and
    deliver them to Jasmattie
  • Professor will not see the evaluations until
    after the last date for appealing grades has
    expired, and all appeals (if any) have been
    settled at the highest level.