January 20: Application of the Charter, Democratic Rights

1. Headline in Globe and Mail on January 19: “Harper warns of activist judges” Are judges activist with their own social agenda? “Some are, some aren’t.” Justice Minister Cotler: irresponsible to impugn the integrity of judges “What we will be looking for is what I call the judicial temperament, and that is the ability to competently and shrewdly and wisely apply the laws that are passed by the Parliament of Canada.” -Stephen Harper January 20: Application of the Charter, Democratic Rights

2. We’ll start with three early charter cases: Big M Drug Mart (April, 1985) Status of Bill of Rights precedents Purpose of Charter Does Charter apply to businesses? Operation Dismantle (May, 1985) Does Charter apply to cabinet decisions? Oakes (Feb., 1986) application of Section 1 (limitations clause) Application of Charter

3. 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 Drug Mart

4. 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. Big M (2)

5. 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 Operation Dismantle

6. Impugned: reverse onus clause in fed Narcotic Control Act. If found guilty of possession of a narcotic, presumed guilty of trafficking unless accused can prove otherwise. Claim of Oakes: violates s. 11(d) presumption of innocence. Oakes: found guilty of possession of 8 one-gram vials of hash oil in 1981. Challenged trafficking charge. Does reverse onus violate s. 11(d)? Yes. Saved by S. 1? In a free & democratic society, the gov’t objective must be of sufficient importance to justify limiting a right. What is objective of reverse onus clause? Dickson: Curb drug trafficking. This is of sufficient importance. Rational connection between objective, and means used? Oakes (1986)

7. Dickson: no. Possession of a small amount of a narcotic does not necessarily mean trafficking is involved. This isn’t a rational way to get at the traffickers. Because the impugned legislation has failed the first prong of the second part of the test, it’s not necessary to consider the other 2 prongs of Part II. Other two prongs of Part II of the Oakes test: the right that is limited should be impaired as little as necessary to meet the government objective there must be an overall balance between the harm done by limiting the right, and the good achieved by meeting the legislative objective. The cure can’t be worse than the disease. Oakes (2)

8. 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. R. v. Edwards Books and Art (1986)

9. 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 ispassed. 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 Edwards (2)

10. Impugned: a court order made under common law that prohibited secondary picketing until legal issues determined Does Charter extend to common law? If so, does Charter cover common law in private law area? (McIntyre wrote dec) Common law: yes. (s. 52): any law inconsistent with const is of no force or effect common law in private law area? S. 32: what does “government” mean? Charter applies to all enacted laws, whether private or public, but not to contracts made according to private law. McIntyre rejects Montesquieu’s definition of government. “Government” is commonly used to refer to executive branch only. If “gov’t” refererred to courts, all judicial orders in private law are covered. Not intent of framers of Charter. Dolphin Delivery (1986)

11. But Cts will apply same principles to private law decisions anyway Obiter: McIntyre: If secondary picketing was governed by legislation, would prohibiting it violate the Charter? First, ban on secondary picketing does violate S. 2 (Beetz dissenting). However, the Oakes test is passed, because Union members can express themselves elsewhere (minimal impairment). Wilson wrote separate concurring decision, applying the Oakes test in more detail. BCGEU case (1988) prov. govt employees’ union went on strike in 1983, and picketed Vancouver Courthouse. CJ issued an ex parte injunction (not under private law) prohibiting picketing. Union appealed, but lost, given the relevant parts of the Dolphin Delivery precedent. Dolphin Delivery (2)

12. York and other universities had compulsory retirement provisions. Unions applied for a ct order in 1986 that comp retirement violated Charter. Does the Charter apply to universities? No: insufficient government control. Is the provision in Ont Hum Rts Code that excludes those over 65 from employment discrimination a Charter violation? Yes - s. 15 Oakes test: a) Objectives: balance between rt to work and need for a pension, and affirmative action for younger workers. They are pressing and substantial. Part II: rational connection: yes minimal impairment: yes overall banance: yes Wilson dissented. Universities covered. Com ret doesn’t meet Oakes test. L’Heureux-Dube: universities not covered, but HRC exemption doesn’t pass Oakes McKinney v. University of Guelph (1987)

13. 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 (1998)

14. 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 (2)

15. 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 (3)

16. 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 (4)

17. 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 (5)

18. 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. Kenneth McRoberts: The Trudeau strategy for Canadian unity has failed. 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. Québec Secession Reference (6)

19. Syndicat Northcrest v. Amselem, [2004]. • Amselem & others set up succahs on balconies of co-owned building (like a condominium) during Jewish religious festival of Succot. Building managers & other co-owners said this violated the rules re balconies, and were granted an injunction to prevent succahs on balconies. Amselem & others appealed to Que CA & SCC under Quebec Charter, Can Charter and Quebec civil code. • Majority (5) led by Iacobucci: Freedom of religion means managers must accommodate. No hardships in this case. Courts shouldn’t judge what religions require. (Similarly, you have a right not to write an exam on a religious holy day that is important to you.) • Minority (4) led by Bastarache: proper for courts to consider evidence about what religions require. Other legitimate alternatives were available. Quebec Charter & civil code protect right to enjoyment of property, and personal security, both of which Amselem and others violated by setting up succahs on balconies.