Hill v Church of Scientology
Hill is a prosecutor in Toronto suing the Church of Scientology as a private individual. Hill brought a common lawlibel action based on allegedly false statements the church made about him (that he misled a judge and sealed certaindocuments). Church argued that the principles of the CL ought to be interpreted, even in a purely private legal action, in amanner consistent with the Charter.
: Does the charter apply to the common law tort of defamation in a private individual matter? If so, is the common lawtort of defamation inconsistent with the Charter (s. 2b)?
Even though Charter doesn’t apply directly to this action, Common law should be interpreted with reference toCharter values (as per obiter in
). If common law is inconsistent with Charter values, and not justifiable, the commonlaw should be modified.
Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. Charter rights do not exist in the absence of state action. However, the CL must be interpreted in a way that isconsistent with charter values. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not extend in the absence of state action.
The most that the litigant can do is argue that the common law is inconsistent with Charter
.NB: The party who is alleging that the common law is inconsistent with the Charter should bear the onus of provingboth that the common law fails to comply with Charter values.
Societe de l’assurance automobile du Quebec v Cyr
Pursuant to s. 520 of the Highway Safety Code (HSC), The Société de l'assurance automobile du Québec (SAAQ), a provincial auto-insurance monopoly, entered into a contract with the Centre de vérification mécanique de Montréal (CVMM)to carry out the mechanical safety inspection of road vehicles. According to this contract, Cyr, an employee of CVMM, wasdesignated as an accredited mechanic for the purpose of the SAAQ's vehicle inspection program
Cyr was mentioned inan appendix to the K but was not an actual party to the K but Cyr signed the appendix agreeing to comply with requiredinspection procedures. However, following notices of breach for failure to apply the appropriate standards during certaininspections, Cyr's accreditation was revoked by SAAQ. Cyr and CVMM filed a motion for judicial review of the decision torevoke the accreditation, claiming that SAAQ had not followed its obligation of procedural fairness under the Act respectingadministrative justice (AAJ).
Is the SAAQ bound by private K law or public administrative law?
Can a government body avoid public law dutieswhen delegating its functions by way of contract or other form of agreement?
Appeal dismissed and Cyr is entitled to procedure fairness. AAJ applies.
held that the actions of the SAAQ in sending the notices of breach and subsequent revocation of accreditation were an exercise of contractual rights, not public admin law, and dismissed the application based on the fact thatthe SAAQ fulfilled its obligation under the K.
Court of Appeal:
Majority set aside the decision, holding that the K was between SAAQ and CCVM not CYR and that Cyr had the right to procedural fairness and that the existence of a contract could not be used by the SAAQ to avoid theobligations codified by s. 5 of the AAJ.
Cyr is entitled to procedural fairness under s. 5 AAJ, as his designation as an accredited mechanic for the purposes of the SAAQ's mechanical inspection program constitutes an administrative authorization. Cyr cannot be considereda party to the contract, because under this contract, CVMM is the mandatary of the SAAQ, not Cyr. Delegations of government power are authorizations. In delegating to Cyr the power to conduct vehicle inspections, the SAAQ was grantinghim the authorization to act on its behalf.
Held that the parties are bound by contract. CYR as an employee of CCVM, is also bound by that K and K lawshould apply.
This case distinguishes between the applicability of public and private law.
David Tanovich, “The Charter of Whiteness: Twenty-five years of Maintaining Racial Injustice in the Canadian Criminal Justice System”
Has the Charter given any hope to Aboriginal and radicalized communities? While there is reason to be optimistic aboutthe possibilities for future reform, the Charter to date has had very little impact on racial injustice in Canada-
We continue to incarcerate Aboriginals and African Canadians at alarming rates, racial profiling at our borders and in our streets flourishes
The utility of using litigation to address racial injustice in the criminal justice system
Oppression is far too deeply rooted to expect a document focused on individual rights and applied by largely white middleclass judges to make any meaningful structural change.-
Successful litigation brings with it considerable attention – media, community organizations, universities and law schoolsor at judicial conferences – and can help raise public consciousness, stimulate academic research and political action. Oneof the most important political responses could be the collection of data which will reveal the extent and scope of racialinjustice.-
Absence of any racial profiling legislation, and the passing of Anti Terrorism Legislation, and the Conservative CriminalCode amendments, has had a disproportionate impact on radicalized communities. So, Charter litigation remains asimportant means of addressing fundamental injustice.-
“While I place considerable reliance on Charter litigation to address racial injustice, there is no question that other legal andextra-legal strategies are necessary in order to ensure implementation of the changes and to fill the gaps when litigationfails. Anti-racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racistactors etc are all examples of strategies that can work together with litigation”
The problem is not with the Charter but with those who argue and interpret it
to judicial review and lack of judicial imagination have played a role in limiting the impact of Charter litigation on racial injustice.-
In a number of key cases addressing issues such as bail (because blacks are more likely to be detained as seen as a danger and flight risk:
R v Hall
), jury selection (because blacks are less likely to be found on juries as many blacks are immigrantsand under the
are not permitted [only citizens can]:
R v Laws
, the use of peremptory challenges to excluderadicalized jurors:
R v Lines –
R v Gayle:
and racial profiling, courts have refused to adopt critical race standards