February 5, 2008 Ian Greene Canadian Constitutional & Administrative Law

Human Rights Early human rights cases The Canadian Bill of Rights Bill of Rights Cases The Road to the Charter The Canadian Charter of Rights and Freedoms The Oakes case Other key decisions Schedule for tonight

Human Rights Ronald Dworkin: " …individuals have a right to equal concern and respect in the design and administration of the institutions that govern them…. They possess [this right] not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice.” Sniderman, Russell, Fletcher, Tetlock: commitment to tolerance. My approach: every human being deserves -- and owes to others -- respect and fair treatment. C.B. Macpherson: rights include opportunities to exercise those rights (positive rights). “human right”: derived either from positive law, or natural law. (eg. legal rights in Charter) “civil liberty”: ability to act without constraints (eg. the “fundamental freedoms” in Charter)

Rights in liberal democracies 1. optimal freedom J.S. Mill: “harm” principle for limits 2. procedural fairness when there are limits 3. equality of application of rights and freedoms Limits to rights: -some differences in ability (eg. qualifications for driver's license, or to become a doctor) -promote honesty (eg. limits to freedom of speech: suits for defamation) -need to preserve public order -to deal with emergencies -resolve conflicts of rights -community-wide restrictions on moral behaviour (eg pornography)

Origins of Rights-Consciousness in Canada Political theory of liberalism – European Renaissance of 15th century – Protestant reformation – Glorious Revolution (England: 1688) – John Locke: Second Treatise on Gov’t 1690 rule of law “one rule for the Rich and Poor, for the Favourite at Court and the Country Man at Plough” judicial indepencence common law protections for individual freedom: – strict attention to rule of law: Entick v. Carrington 1765 – mens rea – crown must prove case beyond reasonable doubt – free confessions – can’t be forced to self- incriminate – prerogative writs (habeas corpus) Development of democratic values – growth of franchise

Rights-Consciousness (2) U.S. Bill of Rights – Jefferson (declaration of independence): “…all men are created equal [and] endowed by their Creator with certain unalienable rights [including] Life, Liberty and the pursuit of Happiness.” (1776) – To get 1787 constitution ratified, state leaders insisted on a Bill of Rights; added in 1789 as first 10 amendments to 1787 constitution: freedom of speech, press, assembly & religion procedural rights: no unreasonable search or seizure, right not to testify against self, can’t be punished twice for same offence, due process safeguards, no cruel or unusual punishment positive legal rights: speedy trial, jury trial for serious cases, reasonable bail, to bear arms, and to refuse accommodation to soldiers

Rights-Consciousness (3) Canada’s bilingual and bireligious heritage – demands in 1864 for guarantees of minority language and minority religious education rights prior to Confederation in 1867 – “small bill of rights”: S. 133 of BNA Act: Eng or Fr in Parl, Quebec leg., and Can & fed courts; similar guarantees in Manitoba in 1870, & AB and Sask in 1905 S. 93: safeguards existing denominational school rights Legislative Supremacy – Preamble to BNA Act: Canada’s constitution “similar in principle” to that of the U.K. – legislative supremacy one aspect of U.K. constitution: seems to contradict idea of a constitutional bill of rights – A.V. Dicey: Introduction to the Study of the Law of the Constitution (1885) human rights protected by common law written constitution is too rigid; trust legislature

Civil Liberty Cases prior to Can Bill of Rts B.C.: disc leg against Orientals – 1899: JCPC stuck down law restricting employment of Orientals as ultra vires prov. Jurisdiction – 1902: JCPC upheld denial of vote to Orientals - leg sup Private suits by Blacks against pte disc: some succeeded, most didn’t because cts emphasized private right to contract Sask: disc leg ag Orientals: upheld by SCC, 1914 “Persons” case: 1930 Alberta Press Case (1938) – impugned: package of Social Credit legislation: unanimously struck down – “Duff doctrine”: because Can. const is “similar in principle” to that of U.K., courts can strike down legislation violating trad. human rights. Also, Canada is a democracy: H of C is representative. “Free public discussion … is the breath of life for parliamentary institutions”

Civ Liberty Cases prior to Can Bill of Rts (2) Treatment of Japanese Canadians during WWII: courts did not intervene “Gouzenko affair” in 1945: secret trials of 26 under War Measures Act without usual procedural protections. Led to Can Civ Liberties Association Duplessis era – Saumur, 1953: SCC struck down Que City bylaw about littering, but aimed at Jehovah’s Witnesses – Switzman v. Elbling, 1957: SCC struck down Padlock Law because it trenched on Parl’s crim law jurisdiction – Roncarelli v. Duplessis, 1959: Roncarelli posted bail for JWs, and Duplessis cancelled his restaurant liquor license. Roncarelli sued Duplessis for violation of rule of law (Frank Scott represented Ron.), and won.

Canadian Bill of Rights Spearheaded by PM John Diefenbaker, and enacted in 1960 S. 1: rights to life, liberty, sec of person, enjoyment of property, equality before law, freedom of religion, speech, assembly, association and press have existed and continue to exist without discrimination by reason of race, national origin, colour, religion or sex S. 2: lists traditional common law legal rights: habeas corpus, no arbitrary detention or imprisonment, no cruel or unusual punishment, no arrest without lawful reason, right to retain lawyer without delay, right not to be forced to incriminate self, innocent until proven guilty, ind and imp tribunal, reasonable bail, interpreter. Right to a fair hearing in accord with fundamental justice to determine rights and obligations. “notwithstanding clause”

Canadian Bill of Rights (2) Robertson & Rosetanni v. the Queen (1963) – impugned: fed. Lord’s Day Act – Ritchie (for majority): Freedom of religion “has existed;” therefore no violation – Fr of Rel means an absence of disabilities, but govt’s can promote religious practices – Although Act as a religious purpose, the effect is purely secular – Cartwright dissented: both purpose & effect of Act compel, under penal sanction, observance of a particular religious holy day – Courts can strike down laws under Bill of Rights; otherwise the “notwithstanding” clause would not be necessary

Canadian Bill of Rights (3) Drybones (1970) – impugned: section of Indian Act that made it an offence for an Indian to be intoxicated off a reservation. No reservations in NWT. – Drybones claimed equality before the law violated – Ritchie (for majority): Where it is “an offence…on account of race…to do something which all Canadians who are not members of that race may do…” there is a violation of equality. – Ritchie adopts Cartwright’s reasoning from Rosetanni that notwithstanding clause means Bill of Rights is more than a rule of construction. – Cartwright dissented. Said he’d changed his mind since Rosetanni. It would be dangerous for the courts to usurp legislature’s role by deciding what statutes violate Bill of Rights.

Canadian Bill of Rights (4) Lavell & Bedard (1974) – impugned: part of Indian Act that states that if an Indian man marries a non-Indian, he retains status and his children inherit it, but if an Indian woman marries a non-Indian, she forfeits her status, as do her children. – Ritchie for majority (5-4): equality before the law, according to Dicey, means equality in the administration of the law. – If all Indian women are treated equally, there’s no necessary discrimination. (Indian women aren’t compelled by law to marry non-Indians). Bliss (1979): – impugned: part of Un Ins Act that stipulated longer qualifying period for work absence due to pregnancy. SCC: no discrimination, as the provision applies to everyone.

Canadian Bill of Rights (5) Oil, Chem and Atomic Workers case (1963): SCC says it’s OK for BC gov’t to prohibit union political contributions if received from check-off. 1969: SCC upholds Alberta discriminatory legislation against Hutterites Dupond (1978): SCC upholds a Montreal by-law that allowed Council to ban all demonstrations for 30-day periods. – Beetz: Demonstrations are not “speech in action,” therefore no violation of freedom of speech – Beetz dismissed the Duff Doctrine – Laskin: strong dissent SCC’s record under Bill of Rights led to support for idea of a constitutional Charter of Rights

The Road to the Charter 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 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 Rights became law April, 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 don’t 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. 8) – 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 effect – applies to Canada (fed) and New Brunswick only, though other prov’s 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 gov’t

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 appropriate” – (2) evidence may be excluded if its collection violated a right, if admitting it “would bring the administration of justice into disrepute”

General 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 isn’t covered by the “notwithstanding” clause)

General (continued) – 29: denominational school rights in CA, 1867 not reduced – 30: Territories included, now and later – 31: Charter does not extend legislative powers; it is a limit – 32: Application to Parl, legislatures, gov’ts (& 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 of CA, 1982 cited as the Charter of Rights and Freedoms

Doucet-Boudreau v. Nova Scotia, 2003: example of application of Ss. 23 & 24 Impugned provision: order of a trial judge to force Nova Scotia to provide secondary schools in the French language, and report on its progress. Nova Scotia CA: S. 24 doesn’t give judges the power to supervise implementation SCC: 5-4 decision: upheld the authority of the trial judge under S. 24(2) Iacobucci & Arbour for majority of 5: – if delay is tolerated, govt’s can avoid Charter obligations – ordering gov’t to report on progress is a “creative blending of remedies,”and leaves gov’t with discretion as to how to build & provide schools, and their nature Lebel & Deschamps for minority of 4: – violates separation of powers – reporting order too vague – judges shouldn’t meddle with administration – a deadline for construction, and threat of a contempt order, is enough

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 citizens Cost of litigation compared to the political process – Lavigne case: NCC spent $500,000; unions $400,000 + – OFVAS case: why didn’t artists use political process to change Ont censorship law? Didn’t know how. – But think of cost of lobbyists

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 gov’t lawyers argue for a narrow interpretation of Charter, whether or not this is gov’t 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 Why do we tend to trust judges more than elected politicians? Was the Charter worth the upheaval it took to get it? – Will revisit this question last week of class

Michael Mandel & the Legalization of Politics Judges are supposed to decide based on principle, and avoid policy. – Hard to separate neatly – Judges tend to be conservative on social and economic questions – Judges tend to be “active” to support interests of business and capital, and “restrained” in relation to advancing the cause of the disadvantaged – American precedents tend to support the advantaged Our legal system assumes all litigants are equal in ability to defend positions. – This is why U.S. courts are reluctant to find affirmative action programs constitutional Charter is supposed to defend the socially weak against majority rule. – But the socially strong have more to gain – Elected govts can act to advance the cause of the disadvantaged. Charter allows them to avoid some issues.

Knopff & Morton: Charter politics Agree with Mandel that Charter allows legislatures to pass difficult issues to courts Charter is a “two edged sword” -- can slash to the right or the left, depending on the judges Do we want judges to be the “official public philosopher?” Should judges be – “non-interpretivists” (will of framers -- a straight jacket) or – “non-interpretivists” (creative, but perhaps against democracy) The Charter Revolution (1999): – groups with axes to grind have used Charter to subvert democratic process feminist groups academics special interest groups (eg. Canadian Civil Liberties Assoc, gay and lesbian organizations, the gun lobby, NCC) groups representing “Charter” Canadians (the handicapped, seniors, new Canadians, Aboriginals)

Other Charter commentators Christopher Manfredi – s. 33 makes Charter more democratic – s. 33 became unpopular because of signs case Alan Cairns – Charter has empowered “Charter Canadians” Peter Russell: – Charter is here to stay, so how can we make sure it works well? Judicial appointment better judicial training My view: – basic principle behind democracy is mutual respect. Mutual respect leads to: democratic institutions respect for minority rights rule of law respect for freedom respect for integrity – What is important is how well courts perform discretionary functions, not whether they have discretion. Do judicial decisions promote mutual respect?

Oakes (1986) 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 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 (2) – 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.