Constitutional Law Test 2

Define Fundamental Freedoms

• S2

• “Everyone has the following fundamental freedoms”

  • Conscience, religion, thought, belief, opinion, expression, freedom of press, communication, media, peaceful assembly, association

Define Democratic Rights

• S3

• Every citizens has the right to vote and be qualified for membership in the HOC and legislative assembly

• No HOC or legislative assembly may continue for longer than 5 years

  • Unless there is real or apprehended war, invasion, or insurrection

  • As long as it is not opposed by 1/3 of the members votes

• Parliament and each legislature must sit at least once every 12 months

Mobility Rights

• Every citizens has the right to enter, remain, leave Canada

• Every citizen and PR has the right to move and reside in any province and pursue life in any province

  • work anywhere

• 3) provisions make it clear that provinces do not have to provide services to anyone inside the provincial borders

  • EX: If you move out of ON, and go to BC, you will be covered under OHIP but not BC yet

  • Provinces have agreed to have similar rules regarding social program benefits and healthcare

Legal Rights

• S7-14

• Combination of investigatory power of the state

• State may punish not citizens

• Courts have been most active in this section & credibly claim to be experts

  • Much of it is putting limits on unelected actors

    • Ex. police

Section 7

• Everyone has the right to life, liberty and security and not be deprived thereof except in accordance with the principles of fundamental justice

• Text implies there are three rights

• Substantive right not just procedural

• Narrow

• Includes the right to not self-incriminate

S7: Criminal Element

• Criminal laws are usually challenged under S7, a lot of S7 cases are about the CJ process

  • Has solidified and expanded the rights of criminally accused

• Extends procedural and substantive guarantees to people accused of crimes

S7: Development

• There is a strong consensus that the drafters of the Charter meant to limit the POFJ to criminal process matters

• This was evident in BC Motor Vehicle Act 1985

  • Driving offence, the court said they are going to adopt a more substantive interest of the POFJ, not narrow or procedural

S7: Scope

• Essentially the limits

• 1. does not protect property rights

  • protects bodily and psychological integrity

• 2. only applies to individual humans

  • corporations have a right to freedom of expression, but not to S7

• 3. does not protect socioeconomic rights (welfare, housing)

  • where the state must provide money, services, resources to avoid infringing a right

  • Ex. Gosselin 2002

S7: Approach

• Onus is on the rights claimants that they are being deprived

  • This contradicts the POFJ

  • A S7 violation will rarely be saved by S1

S7 Components: Right to Life

• Courts have not gone too deep to address the scope of life rights

• This is because capital punishment is gone, so nowhere for right to life to be infringed

• Deported to a country where you are likely to face death penalty 

• MAID case Carter v Canada 2015

  • One of the reasons court struck down prohibition physician assisted suicide bc evidence showerd people with terminal illnesses were comutting suicide themselves earlier than they wanted to die, while they could do it to themselves 

  • Law violates people's right to life, may seem counterintuitive, but if you are ending your life earlier than you want to because that's when you're still capable and no one can help you that is a violation of right to life

S7 Components: Right to Liberty

• Court has divided on how broadly to approach this component

• Infuses a lot of S7 jurisprudence

• Extends to decision making of bodily autonomy

S7 Components: Right to Security

• This is not about physical conditions

• State is not allowed to induce psychological harm or stress on someone

• Morgentaler case

  • Endangered physical health, but also imposed severe psychological stress

• Other examples:

  • waiting lists causing delays in medical treatments, right to raise one’s children

S7: Principles of Fundamental Justice

• POFJ Operates like S7 has its own S1

• 1. Arbitrariness

  • Laws cannot be arbitrary

  • Analogous to rational connection of Oakes test

• 2. Overbreadth

  • Laws cannot be overly broad in application

  • Like minimal impairments

  • If the law is limiting rights, it cannot limit rights beyond that its specific objective requires

• 3. Gross Disproportionality

  • Effects of a law cannot be

  • Like minimal impairment and overall

  • Harms outweigh the benefits of the law in a sense that actually offends society’s moral compass

    • You can infringe rights disproportionately, but not grossly 

      • Key to S12 cases as well

    • Central against mandatory minimum sentences

      • Applied to reasonable hypotheticals

        • Mandatory minimum for Possession of CP law was struck down

R v Morgentaler

• 1969 law that ended a total prohibition on abortion, but put in place a regime that required hospitals who provided abortions to set up therapeutic committees

• Doctors had a committee to approve abortions, based on if they were medically necessary

• Liberal doctors and conservative doctors had discretion based on their own opinions

• Many hospitals did not set up committees at all, so in many parts of the country you could not get an abortion

• The majority in morgentaler was this particular crim law requiring abortion be provided under therapeutic abortion committees violated the S7 of pregnant women because is it arbitrary, created wait times and delays, imposed harm and psychological harm on women seeking the service, parliament has a right to regulate abortion, but cannot create a law that imposes harm

  • There is actually no right to abortion in the Charter

    • So how can a procedure violate the charter, if the procedure is not a part of the charter

      • 4 judges said it was under security of person, 1 said it was under S7 liberty and conscience; 2 said abortion not in charter

•  In the constitutional law, there is no right to abortion as articulated under the SCC

  • The government recognises abortion

    • Has held funding to provinces who did not provide abortions 

    • NB had a 2 doctor approval rule, and restricted funding towards abortions which got the fredericton clinic shut down, only 3 hospitals in NB offer abortion

      • Abortion is a gendered medical service, violates S15

• Provinces regulate

  • Most let the medical profession regulate abortion access

S7: Chaoulli 2005

• Quebec law prohibited purchase of private medical insurance

• Challenge designed by advocates of privatised medicine to fight laws that have prevented the growth of a private medical industry

• Most provinces give doctors discretion on whether they want to be a part of the provincial plan, or open a private clinic

• Dentistry is in the private sphere for the most part

• Trudeau helped with dental coverage

• Chaoulli case was about protecting the public health care

• Court split 3-3 and one judge ruled under Quebec's charter

  • This is because the law creates waittimes, and people are suffering

    • That is state action that is violating the charter

  • Minority of judges said that is not the reason for the law

    • Experts say allowed private healthcare makes wait times worse because it deprives the public system 

• Dissent rips into the majority, and say it is a complex policy issue beyond our understanding, and the legislature should decide

• Because the judge used the Quebec charter, this decision did not apply to the rest of the country

PHS Community Services 2011

• Challenge against the fed minister's decision to stop providing an exemption for insight of a safe consumption site

• Insight was a product of agreement between fed, prov, mun, gov to run a pilot on how safe consumption sites could work to eventually stop people from using drugs

• An exemption was provided for the facility

  • Users could come to the facility without being afraid of being arrested, be monitored, and reduce OD’s

• Harper announced no more exemption

  • Wanted to take a crime oriented approach, people should be treated, not supervised illegal activity

  • Was challenged under S7, challenged fed gov authority under federalism and controlled drugs and substances act

  • Court agreed with gov 

  • On S7 it said it was arbitrary and violated the S7 right of life

    • Complicates the picture of negative rights vs positive rights

    • Implies BC cannot shut down the facility 

    • Implies people have right to safe consumption, but court says no

      • This decision is not a license to open up a an injection facility, it only applies to this one facility

        • Could be interpreted that people in Vancouver have a right to this, but people in other provinces/cities don't

      • As a result, provinces have opened some

      • Doug Ford has been closing facilities and stopped funding them

  • The way the court approaches the idea of harm extends to bedford case

S7: Bedford 2013

• At the time Bedford was decided there were three laws indirectly against prostitution

  • Living off prostitution money - too broad (prevents them from hiring security to keep them safe)

  • Keeping a bawdy house - imposed grossly disproportionate harm (made it hard for sex workers to conduct their work)

  • Communicating for the purposes of selling sex - 

• All three laws were unanimously ruled as unconstitutional under S7

• Harper brought in new laws:

  • Nordic model

  • One banned the purchase of sex

    • Resurrected more specific versions of the living off avails and communicating provisions

• By banning the purchase of sex, it induces sex workers to drive their activities underground

  • People buying sex don't want to be caught

• Gov characterizes the objectives of the law

• It was about nuisance, keeping sex away from the public

• Harper emphasized safety of sex workers in the framing of the law

  • Was a smart move, and changed how the courts approached the POFJ

S7: Rodriguez 1993 & Carter 2015

• MAID cases

• 1993, Sue Rodriguez has ALS and knew she would not be able to breathe or swallow

• Court split 5-4 upholding the law against MAID

  • this was to protect vulnerable people from a potentially slippery slope which is a valid objective

  • Killing people out of inconvenience, or people who lacked capacity could become victims

• In Carter 2015, court overruled precedence which is rare and ruled unanimously that the law against MAID violates all three components of S7 and is too broad

  • In 1993 not all the POFJ were developed, only arbitrariness

  • There was more evidence from countries who had MAID

  • Experts in the Carter case refuted the slippery slope

• There is misinformation about MAID

  • You can only get it a irremedial grievance medical condition, enduring intolerable suffering (psychical or mental), 18 or older, capacity to consent and two health professionals must assess to make sure you can consent 

• Liberal gov divided internally a little

  • Added a criteria in 2016, that the death must be reasonably foreseeable 

    • This was interpreted as a terminal illness, which is not what the court meant

    • Court meant that there was illnesses that were brutal, but not terminal

S 8

• Under legal rights

• Everyone has the right to be secure against unreasonable search ands seizure

• has its own S1 because of “unreasonable”

  • Creates a test: 1. has right been infringed 2. has it been infringed reasonably

• Usually for the police behaviour, such as stop and search, carding

S 9

• Under legal rights

• everyone has the right to not be arbitrarily detained or imprisoned

• Has its own S1 by saying arbitrarily

• For police behaviour mostly

S10

• Under legal rights

• Everyone has the right on arrest or detention to be:

  • a) informed wh

  • b) retain counsel

  • c) valid detention under habeas corpus and be released if detention is unlawful

S11

• Under the legal rights section

• Any person charged with an offence has the right to be:

• A) informed without unreasonable delay

• B) tried within reasonable time

  • Int he 1980’s Used delay stats from MTL and applied them to ON 6-8 months to be tried, or case gets thrown out and 38,000 cases got thrown out against violent criminals

  • Govs aren't spending enough money on hiring judges, systemic delays, judge vacancies

• C) not compelled to be a witness

• D) presumed innocent till guilty

• E) not be denied reasonable bail without just cause

• F) military has its own tribunals

• G) not be found guilty of something that became illegal after

• H) not to be tried repeatedly

• I) benefit the lesser punishment

S12

• Under legal rights

• Everyone has the right to not be subject to cruel and unusual treatment or punishment

• R v Nurr

  • Now many cases are struck down because of mandatory minimums

  • Child porn case

  • Reasonable hypothetical 

    • 17y/o sends 18y/o friend a picture of his 17y/o gf if he does not delete it he is in possession of CP

    • Photo must have sexually explicit nature

    • Court emphasized severity of CP as worthy of severe punishment, but said in this hypothetical scenario, where someone receives an image of someone of basically the same age, do they deserve to go to jail for a year

  • Prisons are under the gov, and subject to the charter rights too

S13

• Witnesses who testify in proceedings have the right not to have any incriminating evidence used to incriminate them in other proceedings, unless in a case of perjury or contradictory evidence

S14

• Party or witness who do not speak the language or are deaf have a right to an interpreter in a trial

Define S15

• Equality rights

• Everyone is equal before and under the law

• Has the right to protection & equal benefit of the law without discrimination

• In particular without discrimination based on race, national. or ethnic origin, colour, religion, sex, age or mental or physical disability

• The law centres on discrimination on the basis of our fundamental characteristics as human beings

Define S15(2)

• “does not preclude any law, program, activity that has amelioration of conditions of disadvantaged individuals/groups

• Is partly an ameliorative provision

  • Recognises exclusion in society based un immutable (unchangeable) features

  • Race, gender, disability

• List is not exhaustive, includes analogous grounds of discrimination

• The most difficult right

• Involves comparisons between individuals and groups

  • Who can be compared to whom to determine discrimination, and what constitutes equal treatment

Scope of S15

• If the law were expansive, it would mean endless lititgation

• The SCC limited equality to the issues listed, or those of analogous grounds in S15

S15: Analogous Grounds

• Can be described as personal characteristics that are immutable (unchangeable)

• Court has added marital status, citizenship, sexual orientation, off reserve status which are fundamental to identity

• Court declined to add marijuana users, workers treated differently under labour laws (ex. RCMP, health professionals cannot strike)

Formal Equality

• Treating things alike

• The similarly situated test

• This is problematic because standardized tests treat everyone the same

  • What if there is no oral or braille version for deaf students

Substantive Equality

• Emphasizes the impact of the law on disadvantaged communities

• Recognizes there are barriers, systems of exclusion on account of their personal characteristics

• Ex. More black people used Crack cocaine and more white people used powder cocaine, and the sentence for crack cocaine is much higher

Andrew’s 1989

• Def:

  • Court unanimously dismissed the idea of a formal equality approach, it is about the effect of the law in practice, hence the substantive approach

• Sig:

  • First S15 case under the charter

  • Laid out that litigants must demonstrate:

    • a denial of equality

    • differential treatment is discriminatory based on enumerated or analogous grounds

  • Ruled citizenship is an analogous ground

• After Andrew’s, substantive equality cases created a division on how to approach in the courts

Egan 1995

• Def:

  • Same-sex rights case challenging the Old Age Security law

• Sig:

  • First time the SCC made a sexual orientation decision

  • Claimants lost case, but court majority found sexual orientation to be an analogous ground

• Court divided

  • Some judges adopted a narrow approach asking if the discrimination related to a biological reality, fundamental value

    • Others judges wanted a broader approach

• 5 said it was discriminatory, 4 said it was not but the 5th judge said it was a reasonable limit under S1

The Law Case 1999

• Attempted to unify approaches with another approach, incorporating human dignity into the analysis

• Is discrimination occurring based on whether the law is impairing the human dignity of people who are dealing with unequal treatment

• Courts could not agree on what impairment of human dignity meant

• Made it harder for litigants to assert a discrimination claim

• Court reverted to Andrew’s approach in 2008

  • Requiring an affront to human dignity limited the success rates of equality claimants

Vriend 1998

• Alberta was sued for not protecting same-sex couples in their human rights law, violating S15

  • Court agreed, but did not strike down the law, instead read in to it, effectively re-writing it

  • One judge dissented

M v H 1999

• Traditional definition of marriage was ruled discriminatory under the Charter

• Court unanimously ruled in favour of same-sex couples for spousal support

• Effects of court decisions and public opinion were mutually reinforcing

• Same sex marriage reference 2004

Eldridge 1997

• Disability Case

• Court unanimously ruled hospitals must provide sign language interpreters for deaf patients

• If a patient cannot communicate with their doctor, that is a barrier

Auton 2004

• Disability case

• Parents of children with autism went to court to get BC to provide behavioural cognitive therapy which was proving successful

• Court had a confused approach of whether or not this is discrimination

  • Unanimously decided litigants are asking for a benefit that does not match a law or benefit given to any other group

  • Court compared autistic children to disabled children who do not receive benefits

    • Not listed as medically necessary treatment, so it was not deemed discriminatory

  • Therapy was new and had yet to become popular

  • Court did not want to put it on BC to provide this expensive therapy

  • Question should be are people being denied benefit under the law

    • Children who could benefit from this treatment and are being excluded from public schools 

Fraser 2020

• Def:

  • Creation of a job sharing program within the RCMP that said 2-3 employees could split the duties of a single full time position as a result of a leave

  • Majority of people enrolling where women with children, returning from maternity leave

  • Program was designed to give flexibility

  • Program did not allow participants to pay into pension contributions

    • Went to court and said this was an equality rights violation, they are losing their pension plan because they are women

  Sig:

  • Court said there was adverse effects discrimination based on sex, and it was an ameliorative program

  • Substantive argument: having kids delays career progress for women

    • If the RCMP is going to undertake a program to deal with systemic inequality, they must do so without discrimination

Current Approach to S15

• Articulated by Fraser

• Claimants must show

• Test:

  • Law has to create or be based on a distinction

  • Must perpetuate, reinforce or exacerbate disadvantage

Quebec v Kanyinda 2006

• Refugee challenged a rule that denied her subsidized daycare on the basis on her refugee status

• Because she was a claimant of refugee status, the prov rule was her children coil not access daycare

• Court ruled that is was adverse effects discrimination

  • Majority ruled that there was discrimination on the basis of sex, not saved under S1

• Intersectionality, between women and refugees became the nexus of this discrimination

• Court ruled law was unconstitutional

• Concurring (wagner): would have treated refugee status as analogous grounds and struck down the law

• Dissenting (cote): rejects the idea that the law is sex discrimination, rejected refugee status as analogous grounds