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Constitutional 1 CONSTITUTIONAL LAW SCOPE OF THE CHARTER s.32 Charter challenges are limited to government actions + actors oClassical liberal rights doctrine purpose is to protect citizens from its government oIn contrast, human rights legislation, applies to individuals as well as governments Test for Government Actors: We look at the degree to which there is significant control by government ministers or their officials in their day-to-day operations and the extent to which the entity acts on the governments behalf or furthers some specific governmental policy or program 1.Government= legislative, executive, administrative Hospitals- yes (Eldridge) Public Broadcasters- yes (Dagenais) Law societies-yes- (Black v. Law Society of AB 1999 SCC) Universities- no- (McKinney v U of Guelph 1990 SCC) If a statute is the source of authority for an order, than the exercise of the adjudicators discretion is subject to the Charter- Slaight Communications 1989 SCC Unlawful secondary picketing by a union-no-(unless they were protesting a public matter and faced a suit by the government) Dolphin Delivery 1986 SCC Government unions-yes- (Lavigne v. OPSEU 1991 SCC) Colleges- yes- (Kwantlen Faculty Assn v. Douglas College 1990 SCC) Charter applied in a proceeding involving an ex parte injunction b/c the judge was acting in a public capacity and invoked criminal law powers- yes- (BCGEU v. BC 1988 SCC) The Charter may also apply to non-governmental actors indirectly: Provinces may enact human rights codes which extend Charter protection to the private sector Could a private school refuse to hire teachers due to their sexual orientation? While the school is not subject to the Charter directly, it did have to comply w/the AB Individual Rights Protection Act, which was created to combat discrimination in the private sector. Sexual orientation was added as a prohibited ground of discrimination: Vriend v. AB Constitutional 2 INTRODUCTION: INTERPRETATION OF THE CHARTER Original nameCharter of Human Rights courts should avoid narrow enunciated N. S. (W.C.B.) v. Laseur Any tribunal w/ the statutory jurisdiction, either explicit or necessarily implied, to answer questions of law, will have the jurisdiction to answer all questions, including constitutional questions. Why? Unconstitutional laws cant be enforced. The Nuremberg Principle: you cannot invoke the defence of following orders for certain types of crimes (e.g. genocide) and by extension, for violating human rights. McLachlin in Bell v. Cooper Charter should engage people as early as possible so Charter arguments should be made the lowest possible level. Standing: Who gets to bring a Charter argument? Important b/c determines your remedy (s. 24 or s. 52) * Corporations only have s. 52 standing only under s. 2(b) Standing before a court is your right to be there. Can be: By right oParty (e.g. to a contract) under s. 52/ s. 24(1) oIntervenor: restricted to prov. and fed. AG, who have right to present whatever evidence or argument deemed necessary to defend constitutionality of the law By discretion court grants you standing, requires a prior argument to the court oPublic Interest Standing: gets you “party-like” standing w/ possibility to challenge the law even though it doesnt effect you directly; group must apply to the court before a case is heard and demonstrate both that it has a serious interest in issues and a distinctive perspective oIntervenor Status: you get to makes arguments relevant to the issue, typically from the pt. of view of a group not normally able to go before court R. v. Big M Drug Mart (1985 SCC)Lords Day Act Big M began opening on Sundays, when “Lords Day Act” criminally prohibited business on Sunday; argued this unjustifiably infringed freedom of religion. Crown argued that D was a corporation and lacked the requisite characteristic to have freedom of religion and standing before the court. Corporations cant invoke s. 24 but if they have been subject to a criminal charge, they can defend it through a Charter challenge. H: gets party standing b/c of principle that being directly affected by the laws enforcement is sufficient to anchor party standing. Constitutional 5 Canadian Egg Marketing Agency v. Richardson (1998 SCC) Corporation allowed to defend itself in a civil procedure by arguing that law violates rights of natural persons and is therefore invalid. You can get standing if there are legal consequences that w/ apply to you b/c of the law. Borowski v. Canada (AG) Public Interest Standing Test Standing trilogyThorson v. Canada, N.S. Board of Censors v. McNeil, Borowski v. Canada: all three were successful at bringing a challenge even though they werent party to the dispute Applicant must meet 3-step threshold: Demonstrate that case raises a serious legal issue. Demonstrated record of interest in the issue There must be no other reasonable/ effective way to bring issue before court. NB: Underlying rational is that no statute should be immune to judicial review. Borowski, a pro-life activist, brought an action seeking a declaration that the abortion provisions violated the fetuss right to life under s. 7. Canadian Council of Churches v. Canada (Minister of Employment and Immigration) Failure of 3rd step of standing test SCC denied council standing to challenge refugee procedures on the basis that individual refugee applicants are in a better position (failed at the 3rd step). Courts prefer to hear cases from affected parties. Vriend v. Alberta (1998 SCC)Practicality Teacher atsmall, Christian school fired for being gay. AB human rights code had standard discrimination procedures but not on sexuality. Vriend brought a challenge to the courts over this gap. I: Did he have standing to challenge sections of the human rights code, which didnt apply to him (accommodation and b)The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban Dolphin Delivery Basic principle of the Charter application is that the purpose of the constitution is to check the power of the government over the individual. Constitutional 10 s.2 (a) FREEDOM OF CONSCIENCE AND RELIGION Every individual is free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own- Big M Drugmart 1985 SCC *The Government cannot identify w/ religion (even though there is a clear reference to the supremacy of God in the preamble of the Charter) 2 breach possibilities Government Identification w/ a particular religion Interference in religious practice (not the same as s. 15 discrimination here) (Amselam- condo laws) Recognized by the courts as an important value long before the Charter, but could only be protected indirectly through the interpretation of statutes and the enforcement of the division of powers. S. 2(a) provides that “freedom of conscience and religion” is a fundamental right of all Canadians. Summary: 2(a) 2(a): “to protect centrality of individual conscience, respect diversity of religious practices found in our multicultural society” freedom to manifest religious beliefs (includes rearing children according to religious beliefs) freedom from coercion Purpose or Effect can render legislation unconstitutional Purpose (Big M) Effect (Edward Books, but saved by s.1) Purpose cannot shift (Dickson: Big M) “Religion” (Dickson): “profoundly personal beliefs that govern ones perception of oneself, human kind, nature, and, in some cases, a higher or different order of being.” * Corporations can defend criminal charge through Charter challenge. * Respect for religious minorities is fundamental here in Canada- Syndicat v. Anselem 2004 SCC Constitutional 11 Sunday Closing Laws R. v. Big M Drug Mart (1985 SCC) Religious purpose Federal Lords Day Act prohibited Sunday shopping; objective was promotion of Christian Sabbath- any other secular purpose would fall w/n provincial jurisdiction. S. 2(a): Purpose isto protect centrality of individual conscience, respect diversity of religious practices found in our multicultural society. Freedom of religion protects: 1.Freedom to manifest religious beliefs 2.Freedom from coercion If purpose OR effect of legislation is religious, legislation can be found unconstitutional Here: Purpose religious; effect secular. Concluded that Act was coercive in nature b/c its purpose was to compel universal observance of Christian Sabbath. Non-Christians thus prohibited from carrying out otherwise lawful activities. Preferred position of Christian religion under Act seen as undermining respect for religions of other groups in society. Not saved under s. 1 b/c purpose repugnant to Charters protection of religious freedom for minorities. No shifting purpose R. v. Edwards Books and Art Ltd. (1986 SCC) Religious effects of law A “common pause day” Sun for workers in the retail industry Case dealt w/ Ontario Sunday closing law; Secular purpose give retail workers day of rest; exemption to those who, for religious reasons, observed different day of rest, but only to small retailers (7 or less employees w/ less than 5000sq ft space) who had closed previous Saturday. Majority held effect was not neutral, putting Saturday observers at a disadvantage financial burden was found to violate freedom of religion; HW, saved by s. 1. 2(a) Purpose secular; effect religious (interference w/ religious freedom established competitive disadvantage for non-exempt Saturday Sabbath observing retailers S. 1 minimal impairment test: ask whether the right was impaired “as little as reasonably possible” “Purpose of 2(a) is to ensure that society does not interfere w/ profoundly personal beliefs that govern ones perception of oneself, humankind, nature, and in some cases, a higher or different order of being. These beliefs, in turn, govern ones conduct and practices.” Demonstrates that burdens on the practice of religion are not always in violation of the Charter. Laws can also be unconstitutional if their effect interferes w/freedom of religion however the law in question in this case was constitutional since it had the effect of protecting vulnerable workers. Constitutional 12 Limits of Religious Freedom B.(R.) v. Childrens Aid Society of Toronto (1995 SCC) Jehovahs Witness parents refused to allow their infant child to undergo blood transfusion thought by doctors to be required to save childs life. Aid Society brought application to take child into care. Parents argued this violated their freedom of religion. SCC upheld order, placing child under protection. M (5-4 split): Freedom of religion guarantee protects religious beliefs even if those beliefs could harm another; thus, right violated. HW, the limitation was justified in order to protect child. D: Guarantee of freedom of religion shouldnt extend to conduct endangering life or health of child. Ross. v. New Brunswick School District No. 15 (1996 SCC) LimitRespect of rights of others SCC held that decision of NB human rights tribunal ordering school board to remove teacher who had expressed anti-semitic views, violated teachers freedom of religion, as well as freedom of expression. Freedom of religion must be interpreted broadly to include all sincere religious beliefs and to leave the justifications for restricting freedom of religion to s. 1. S. 1 justified removal order b/c “any religious belief that denigrates and defames religious beliefs of others erodes the very basis of the guarantee in s. 2(a). Crt stresses need to interpret freedom of religion broadly to include all sincere religious beliefs and to leave the justifications for restricting freedom of religion to s.1 of the Charter Any religious belief that denigrates and defames the religious beliefs of others erodes the very basis of the guarantee in s.2(a)- every ind free to hold and to manifest the beliefs dictated by ones conscience. Trinity Western University v. B.C. College of Teachers (2001 SCC) Balancing Charter rights Trinity offered degrees in education and applied to BC College of Teachers for permission to assume full responsibility for program to have it reflect Christian worldview. College denied application b/c of concern that institution appeared to follow discriminatory practices against homosexuals; members asked to sign document agreeing to refrain from engaging in “sexual sins” including “homosexual behaviour”. Decisions must reconcile freedom of religion split b/w English and French Ontario, public school system not officially affiliated with Protestantism but separate school system was officially tied to Roman Catholic church o10 years ago, Quebec used amending formula to strip the schools system of religious identity and replace it w/ linguistic identity, anchored in original language bill, Bill 101, strict qualifications oNewfoundland also pulled itself out from s. 93; in 1949, they only had religious denominational schools but abolished these in mid-90s and created a full public school system oBy contrast, ON strengthened its religious schools, which it doesnt fund (unlike AB) Separate system funded until g.10, after which you either transfer to public system or pay tuition. Prior to 1982, courts were hesitant to strike down religious legislation but after, Charter challenges to this system. As Canada diversifies, this created problems for the public system. Zylberberg v. Sudbury BOE (Ont. C.A. 1988) Morning public school prayer abolished under s. 2(a). Jewish parents didnt want their child to participate in morning recitation of Lords Prayer; child had option to stand in the hallway; concern on the part of parents over this option. You cannot create a public school institution, which includes mandatory religious exercises. Requirement of prayers and scripture reading violated the rights of both Christians and non-Christians by compelling religious observance and stigmatized those who refused to participate as non-conforming. Right to claim an exemption did not negate coercive quality of regime- created pressure to conform. Notes: HW, there were plp who began to challenge the neutral denomination of the public system b/c there was funding for the Catholic system. challenges to this a current debate in ON. Reference Re Bill 30 (Ontario) (1987 SCC) Funding for denominational schools Supporters of non-Catholic religious schools in Ontario contend that they, too, should be given public financial support for their schools. This case arose when Ontario extended funding for Roman Catholic school system from g. 10 to g. 13. SCC interpreted s. 93 to require full funding to g. 13 but dismissed argument that s. 2(a) part of historical compromise leading to Confederation. If you create a public school, you must also fund Catholic system. S. 2(a) cant be used to break this. What does the Charter do? If province creates a public system, it must run consistent with s. 2(a). S. 2(a) State identity (state strips itself of religious identity) Burden S. 2(a) not breached b/c state has not imposed a burden on anyone. Parents can either send their children to a public school or bear the burden of paying for private school. Having chosen a religion, they must bear cost of sending children to denominational school. Pringle- older case- Christianity this harm then becomes basis of restrictions on our liberty; if ones activity doesnt harm others, the state has no interest in restricting ones liberty. 2 concepts of liberty positive liberty (freedom to do) i.e.obscenity laws) v. those that merely have the effect of limiting expression (restriction on handing-out pamphlets) Effects-based constraint, laws which simply have the effect of limiting expression (Anselem). The party claiming the protection of Charter must be able to show that the activity in question promotes one of the three principles underlying freedom of expression (Keegstra); Political debate Marketplace of ideas Autonomy and self-fulfillment *Then do s.1 Test Justifying Limits RJR-MacDonald Inc. v. Canada (AG) (1995 SCC) Fails at minimal impairment step Tobacco Act prohibited advertising the by- law prohibiting posters placed an undue restriction of freedom of expression Montreal v. 2953236 (2005 SCC) City is prohibiting noise produced in the street w/ a loudspeaker. Confirms a third step to the s.2(b) test, and adopts Lamers position in Committee for the Commonwealth. Is this space in fact essentially private despite being publicly owned or is it public? Is this a place that was meant to get freedom of expression? COMMERCIAL EXPRESSION Ford v. Quebec 1988 SCCcommercial language is protected expression Quebec sign laws prohibited use of any language other than French on commercial signs was held to be overbroad. Quebec failed to introduce evidence to show that such an extreme law was necessary in order to preserve the French language in Quebec. The court affirmed that commercial expression is protected expression and that enforcing French as the medium for expression had the effect of limiting expression for those who are not as comfortable in that language. Language is an essential form of expression. Irwin Toychildren are a vulnerable group Even though the law imposed a total ban on advertising to children under 13 yrs, the government succeeded in justifying the limits, since the law was enacted to protect a vulnerable group (children- who are by nature extremely impressionable). Constitutional 18 RJR MacDonald v. Canada 1995 SCC Law imposing a complete ban on the advertisement of tobacco products was overbroad and not justified under s.1 (failed at minimal impairment stage). POLITICAL EXPRESSION Historically, freedom of expression evolved in order to protect dissension speech. In Libman, Harper, and Bryan, the