1. Application of Charter 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)

2. Big M Drug Mart 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

3. Big M (2) 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 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.

4. Operation Dismantle 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

5. 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 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?

6. 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.

7. R. v. Edwards Books and Art (1986) 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 fewer 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.

8. Edwards (2) –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 is passed. 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

9. Dolphin Delivery (1986) 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 M ontesquieu’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.

10. Dolphin Delivery (2) –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.

11. McKinney v. University of Guelph (1987) 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