1. Canadian Constitutional Law Section B: November 19, 2011 Judicial Decisions on the Charter of Rights Course Director: Ian Greene

2. Presentations: Monahan Patrick Monahan, Constitutional Law, Ch 13 (except 439-460): Manivillie Kanagasabapathy Patrick Monahan, Constitutional Law, Chapter 14: Samaneh Bayat

3. “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 limits prescribed by law as can be demonstrably justified in a free and democratic society. 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 criteria: (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 govern­ ment 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 disease.

4. The Court and the Constitution: Leading Cases Case 22, The Queen v. Big M. Drug Mart (freedom of religion, 1985): Andrei Segal Case 24, The Queen v. Oakes (1986): Joel Montesanti Case 25, Morgentaler v. The Queen: Maggie Inrig Case 26, Quebec v. Ford et al. (Quebec sign case, 1988): Jillian Steinberg Case 28, R. v. Keegstra (hate speech, 1990): Daniel Italiano Case 31, RJR-MacDonald Inc. v. Canada (AG), (advertising, 1995): Ian Greene

5. RJR-MacDonald (1995) 1988 federal Tobacco Products Control Act of Mulroney government challenged by tobacco companies; got to Supreme Court in 1994 Five-four decision in 1995 struck down key parts of the legislation. Majority decision of McLachlin: – Purpose of Act: “to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products,” and “to discourage people who see the package from tobacco use.” – Sufficienty important to justify infringing Freedom of Expression – No rational connection between objectives and means used; no social science evidence justifying such drastic means. – Legislation does not limit Fr of Exp as little as necessary Concurring decision by Iacobucci: – The legislation passes the rational connection test, but not the minimal impairment test. To pass this test, revise legislation to prohibit “lifestyle” advertising & advertising directed at adolescents. Dissenting opinion of La Forest: – Purpose of Act is “to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products,” and “to discourage people who see the package from tobacco use.” – The Act is sufficiently important to infringe rights, and given the definition of purpose, passes all three parts of Part II of the proportionality test. – Emphasizes importance of deferring to Parliament regarding complex policy choices

6. Impact of RJR Macdonald Chrétien government had Parliament enact the Tobacco Act in 1997, which permitted “information and brand-preference advertising, while forbidding lifestyle advertising and promotion, advertising appealing to young persons, and false or misleading advertising or promotion.” The new legislation also increased the amount of space that would need to be taken up on packaging for health warnings was increased from 33 percent to 50 percent. The revised legislation was upheld by the Supreme Court in 2007. The Court referred to the Hogg-Bushell “dialogue” theory. Janet Hiebert is critical of Parliament for implementing the majority’s prescription for creating legislation relating to tobacco advertising that would comply with the Charter. See Charter Conflicts: What is Parliament’s Role? (McGill-Queen’s Univ Press, 2002) See also Ian Greene’s more extensive notes on RJR Macdonald, linked to the class web page.

7. The Court and the Constitution: Leading Cases Case 34, Sauvé v. Canada (prisoners voting rights, 2002): Kris Stone Case 36, Chaoulli v. Quebec (AG), (right to adequate health care, 2005): Bonnie Granata Case 37, Health Services and Support (SCC overrules a previous decision and expands labour rights, 2007): Augustine Nnamdi Case 39, Delgamuukw v. BC (aboriginal land claim rights, 1997): Trisha Johnson-White Case 40, R. v. Marshall (aboriginal constitutional fishing rights, 1999): Andreia Cabral Case 48, Ref. re Secession of Quebec (principles of Canadian democracy, 1998): Neha Narang