1

Table of Contents
Ch 16 The Advent of the Charter.......................................................................................................3 The Adoption of the Charter............................................................................................................3 The Honourable Pierre Elliott Trudeau, Minister of Justi e, A Canadian Charter of Hu!an "i#hts, Januar$ 1%6& p. '1%...................................................................................................3 A. Cairns, Charter (ersus )ederalis!* The +ile!!as of Constitutional "efor! p. ',,......3 "ussell, -The Politi al Purposes of the Canadian Charter of "i#hts and )reedo!s- p. ',.. 3 /. 0einrib, -1f +ili#en e and +i e* "e onstitutin# Canada2s Constitution- p. ',&.............3 /.E. 0einrib, -Canada2s Charter of "i#hts* Paradi#! /ost3- p. '34....................................3 M.E. 5old, -The Mas6 of 1b7e tivit$* Politi s and "hetori in the 8CC- p. '39................9 The Merits of Entren h!ent and the /e#iti!a $ of Judi ial "evie:.............................................9 0. ;o#art, Courts and Countr$ p. '3'...................................................................................9 A. Petter, -<!!a ulate +e eption* The Charter2s Hidden A#enda= p. '3%...........................9 /. 0einrib, -/i!itations on "i#hts in a Constitutional +e!o ra $- p. '93.........................9 P. Ho## and A. ;ushell, -The Charter +ialo#ue ;et:een Courts and /e#islatures- p. '96.9 (riend v. Alberta p. '.1..........................................................................................................9 Ar#u!ents Con........................................................................................................................ Ar#u!ents Pro........................................................................................................................6 Ch 1' The )ra!e:or6 of the Charter................................................................................................6 Anal$ti al )ra!e:or6............................................................................................................6 <nterpretin# "i#hts...........................................................................................................................& The Purposive Approa h.............................................................................................................& Hunter v. 8outha! p. '.&.......................................................................................................& Aids to <nterpretation p. '6,.......................................................................................................& )indin# an <nfrin#e!ent..................................................................................................................% ". v. ;i# M +ru# Mart /td p. &93..........................................................................................% Ed:ards ;oo6s and Art /td. v. The >ueen p. &.1.................................................................% Justif$in# an <nfrin#e!ent* 8e tion 1..............................................................................................% Pres ribed b$ /a: p. '66............................................................................................................% ". v. ?ova 8 otia Phar!a euti al 8o iet$ p. '6%................................................................14 Justifi ation...............................................................................................................................14 The 1a6es Test..........................................................................................................................14 ". v. 1a6es p. ''9.................................................................................................................14 ?otes p. '''..........................................................................................................................14 The 8ubse@uent +evelop!ent of the 1a6es Test* ConteAt and +eferen e...............................11 Ed!onton Journal v. Alberta BAttorne$ 5eneralC p. '&1......................................................11 The +eferen e 8tor$.............................................................................................................11 The 1verride.............................................................................................................................1, )ord v. >uebe BAttorne$ 5eneralC p. '%1...........................................................................1, Ch 1& Appli ation............................................................................................................................1, Elliot2s 8even Prin iples of Charter Appli ation..................................................................1, <ntrodu tion* The +ebate About Appli ation to Private A tion....................................................13 "etail, 0holesale, D +epart!ent 8tore Enion, /o al .&4 v. +olphin +eliver$ p. '%'......13 5overn!ental A tion.....................................................................................................................13 5overn!ent A tors...................................................................................................................13 Entities Controlled b$ 5overn!ent..........................................................................................13 M Finne$ v. Eniversit$ of 5uelph p. &43...........................................................................13 ?otes p. &4'..........................................................................................................................19 Entities EAer isin# 5overn!ental )un tions............................................................................19

, 5odbout v. /on#ueuil BCit$C p. &11.....................................................................................19 5overn!ental A ts....................................................................................................................19 Entities <!ple!entin# 5overn!ent Pro#ra!s..........................................................................19 Eldrid#e v. ;ritish Colu!bia BAttorne$ 5eneralC p. &16.....................................................19 Entities EAer isin# 8tatutor$ Po:ers of Co!pulsion...............................................................1. ?otes p. &,4..........................................................................................................................1. 5overn!ent <na tion.....................................................................................................................1. (riend v. Alberta p. &,1........................................................................................................1. +un!ore v 1ntario p. &,9....................................................................................................1. Appli ation of the Charter to Courts and the Co!!on /a:.........................................................16 "elian e b$ 5overn!ent on Co!!on /a: p. &,....................................................................16 "elian e on Co!!on /a: in Private /iti#ation......................................................................16 Hill v. Chur h of 8 ientolo#$ of Toronto p. &,'..................................................................16 ?otes p. &,%..........................................................................................................................16 Ch ,4 )reedo! of EApression.........................................................................................................16 <ntrodu tion* Purposes of the 5uarantee.......................................................................................16 ". v. Fee#stra p. %63............................................................................................................16 The 8 ope and /i!its of )reedo! of EApression..........................................................................1' <r:in To$ /td. v. >uebe BAttorne$ 5eneralC p. %'............................................................1' ?otes and >uestions p. %&9..................................................................................................1' Co!!er ial EApression.................................................................................................................1& "J" Ma +onald <n . v. Canada BAttorne$ 5eneralC p. %&&.................................................1& ?otes and >uestions p. 1443...............................................................................................1& Canada BAttorne$ 5eneralC v. JT<GMa donald Corp. p. 144...............................................1& Hate 8pee h...................................................................................................................................1% " v. Fee#stra p. 141&...........................................................................................................1% "e#ulation of 8eAuall$ EApli it EApression..................................................................................1% " v. ;utler p. 149,................................................................................................................1%

Ch 16 The Advent of the Charter

The Adoption of the Charter
The Honourable Pierre Elliott Trudeau, Minister of Justice, A Canadian Charter of Human Rights, January 19 ! "# $19
Over time, human rights have garnered more attention and been recognized as necessary. Thus, they must be protected from the government. In Canada, there is the %ill of Rights, but it could be repealed as easily as any other statute. An entrenched guarantee of rights would provide protection for certain rights from political controvers and the whims of the majority.

A# Cairns, Charter &ersus 'ederalism( The )ilemmas of Constitutional Reform "# $**
An entrenched Charter is an erosion of parliamentary supremacy. owever, the perceived importance of parliamentary supremacy was waning into the !"#$s and %$s. This was in part due to its connection with &'ritishness& which no longer seemed as important as the prestige of the empire fell and Canadians wanted a symbol of nationalism. Increase in immigrants and discussion about human rights in the international arena both led to the Charter being that symbol. Immigrants would be helped by having a written 'ill of (ights, rather than being e)pected to *now what the &'ritish way& of doing things was.

Russell, +The Political Pur"oses of the Canadian Charter of Rights and 'reedoms+ "# $*,
+uebec, in the !",$s, was pushing for constitutional reform in order to get more rights, but the federal government, including Trudeau, was concerned about the alienation that would cause. Trudeau government felt that a Charter, as an agreement on common values, would be a unifying and nation building document. -omestic events also contributed to the desire for a guaranteed bill of rights. treatment of /apanese Canadians0 persecution of /10 treatment of -ou*habors, etc.

-# .einrib, +/f )iligence and )ice( Reconstituting Canada0s Constitution+ "# $*!
istory of Charter drafting. Initially protected only rights involved in the political process.

-#E# .einrib, +Canada0s Charter of Rights( Paradigm -ost1+ "# $23

istory of ss. ! and 22. Original s. ! was too e)pansive and was revised to the language of &reasonable limits&. 3rovincial governments unhappy with this and fought to get the notwithstanding clause added in.

9 M#E# 4old, +The Mas5 of /b6ecti7ity( Politics and Rhetoric in the 8CC+ "# $29
Patriation Reference resulted in 4CC declaring a constitutional convention that the proposed Charter re5uired support of a substantial majority of the provinces. +uebec allied with # other provinces to oppose the Charter. As political pressure for a Charter mounted, provinces went to the federal government without +uebec in order to ma*e a deal.

The Merits of Entrenchment and the Legitimacy of Judicial

.# %ogart, Courts and Country "# $2$

evie!

Charter pros. independent judges protect the disadvantaged0 allows individuals, especially those from minorities, to see* vindication in an open process0 unifies Canadians. Charter cons. independent judges are unaccountable and elitist0 help for the disadvantaged occurs through legislative action0 citizens, through elected officials, should be responsible for finding solutions0 any legal discourse will invariably favour the rich.

A# Petter, +:mmaculate )ece"tion( The Charter0s Hidden Agenda; "# $29

Charter cons. selective view of 6state7 means une5ual distribution of wealth cannot be addressed0 protections for the poor arise out of legislation, not common law0 judiciary has no e)posure to or understanding of the disadvantaged sections of our population0 Charter protects individual interests 8 profit, at the cost of government interference 8 regulation and redistribution of wealth.

-# .einrib, +-imitations on Rights in a Constitutional )emocracy+ "# $92

Charter pros. judiciary avoids problems of political motivations0 can force legislature to recognize and correct unforeseen conse5uences of legislative activity.

P# Hogg and A# %ushell, +The Charter )ialogue %et<een Courts and -egislatures+ "# $9
Charter pros. encourages legislatures to amend legislation in breach of the Charter, which is a form of dialogue0 increases awareness of Charter rights.

&riend 7# Alberta "# $,1

Court has found that the omission of se)ual orientation as a prohibited ground of discrimination in Alberta9s human rights legislation is an unjustifiable violation of s. !:. Iacobucci comments on appropriate relationship between courts and legislatures. both are somewhat accountable to the other 8 legislation is reviewed by the courts, and decisions are reacted to by passing new legislation.

. Arguments Con
!. istory tells us that improvements in the lives of ordinary people, and particularly those who suffer from economic and social disadvantage, have come more often from legislative bodies than from the courts ;wor*er<s compensation schemes, labour relations codes, employment standards legislation, human rights codes, social welfare programs, medicare, etc.=. >. 'y giving unelected and unaccountable judges the power to annul decisions made by the elected representatives of the people, especially on the basis of the vague and general language that one usually finds in an entrenched charter, such an instrument is intrinsically anti?democratic. 2. 'y moving difficult moral and other issues ;abortion, assisted suicide, access to health care, etc.= out of the political arena and into the courts, an entrenched charter saps the strength of the democratic process. @. Only those with significant financial resources will be able to enforce their entrenched rights and freedoms through the courts, which means not only that those rights and freedoms will only be meaningful to a few, but also that the courts will tend to construe the rights and freedoms in a way that reflects the interests of those few. :. /udges are ill?suited in terms of both their education and their professional e)perience to resolve the often difficult issues of social and economic policy that an entrenched charter will generate. ,. The adversarial process itself, which limits participation to two opposing parties and results in outright winners and losers, is ill?suited to resolve such issues, particularly those which engage the interests of many individuals andAor groups within society. #. An entrenched charter promotes in the minds of both judges and ordinary citizens the unfounded notion that the state is always the enemy, and never the friend, of freedom. %. An entrenched charter<s emphasis on individual rights wor*s against the sense of community and collective responsibility for the general welfare that is necessary for the maintenance of a healthy society. ". Bntrenching some rights and freedoms and not others in a constitution introduces an undesirable element of infle)ibility into the constitutional order, particularly over the long term. !$. An entrenched charter has the effect of polarizing individuals and groups within society, thereby reducing their willingness to see* out through the political process compromise solutions to issues that engage their differing interests.

6 Arguments Pro
!. Our legislative bodies are not responsive to the needs and interests of each and every group within society, particularly the marginalized and unpopular, and cannot therefore be trusted to represent everyone fairly. >. Our legislative bodies are also not all?*nowing and cannot therefore always foresee the effects that their actions will have on individuals and groups within society. 2. An entrenched charter enhances democratic self?government by obliging governments ;when called upon by courts to do so= to provide a rational justification for actions they ta*e that infringe on basic rights and freedoms. @. An entrenched charter guarantees that difficult moral and other issues involving basic rights and freedoms can be considered by a dispassionate body on the basis of fundamental values and principles rather than short?term political interests. :. An entrenched charter offers to outsiders to the ordinary democratic process another forum in which they can be heard in the resolution of important societal issues. ,. -emocracy is about more than simple majority rule 8 it is also about the promotion of individual human dignity, a higher order value that an entrenched charter also helps to promote. #. An entrenched charter need not be limited to the protection of individual rights and freedoms 8 it can also protect the interests of collectivities. %. An entrenched charter need not be limited to the constraining of governmental power 8 it can also oblige governments to act. ". An entrenched charter constrains the powers not only of legislative bodies, but also of government officials ;especially the police=, and in its application to the latter, poses no challenge to democratic self?government. !$. -epending on the basis upon which they are made, decisions annulling legislation will often leave the elected branches of government with room in which to pursue the same ends in new legislation, thereby leaving the elected branches of government with the last word ;the 6dialogue theory7=.

Ch 1" The #rame!or$ of the Charter

Analytical 'rame<or5
A% &reliminary 'ssues

'
!. Is the courtAtribunal before which the Charter claim is being made a 6court of competent jurisdiction7 ;as re5uired by s. >@;!==C >. -oes the Charter applyC 2. as the re5uisite notice of constitutional 5uestion been given ;based on legislation in relevant jurisdiction=C @. -oes stare decisis preclude a full Charter analysis in respect of any or all of the issues raisedC :. Is this an appropriate case in which to consider the merits of the claim ;standing, mootness, ripeness, etc.=C (% Merits) #irst *tage ;Onus on the challenger= !. Is the claimant<s interest protected by the Charter rightAfreedom being invo*edC >. If so, has that rightAfreedom been infringed by the impugned governmental actionC C% Merits) *econd *tage ;Onus on the government= !. Is the infringement 6prescribed by law7C a. If the impugned governmental action was ta*en by a government official or other subordinate body, was there a legal basis for that actionC b. If the impugned governmental action is legislation, is that legislation reasonablyAsufficiently precise in its wordingC >. If so, is the infringement reasonableAdemonstrably justifiedC ;/a5es= a. Are the objectives of the impugned governmental action both ;i= valid, and ;ii= sufficiently important to warrant overriding the Charter rightAfreedom in 5uestionC b. is the impugned governmental action proportional to the objectives underlying it. ;i= is that action rationally connected to those objectivesC ;ii= does that action minimally impair the rightAfreedom in 5uestionC ;iii= do the benefits of that action outweigh the costsC +% emedies !. Is this a case to which s. :>;!= of the Constitution Act, !"%> applies and, if so, which of the available s. :>;!= remedies is appropriate ;eg., declaration of invalidity, suspended declaration of invalidity, reading down, reading in=C >. Is this a case to which s. >@;!= of the Charter applies, and, if so, what is the 6appropriate and just7 remedy ;eg, injunctive relief, damages, stay of proceedings=C

&
2. Is this a case to which s. >@;>= of the Charter applies, and, if so, should the evidence be e)cludedC DOTB. The analysis called for by the above 5uestions, especially by those in Eerits. 4econd 4tage, is to be underta*en with a high degree of sensitivity to the specific legislative and factual conte)t out of which the case has arisen. ow much, if any, deference to the other branches of government the court shows will depend on its assessment of that conte)t.

'nterpreting

ights

The &urposive Approach Hunter 7# 8outham "# $,!

#) 4earch of newspaper offices underta*en under a process that did not re5uire judicial authorization. This was challenged as a violation of s. % ') 1hat is the meaning of &unreasonable& in s. %C L) Cannot interpret the Charter in the same manner as an ordinary statute, since it cannot be easily modified. /ust li*e the Constitution Act, 1! $, it must be given a broad and purposive interpretation. First identify the interest that was meant to be protected, then interpret the right so that it protects that interest. A) 3urpose of s. % is to protect reasonable e)pectations of privacy. To allow it to do so, it must be interpreted as a constraint on governmental action which interferes with that protection. C. The provisions allowing search warrants with no judicial approval are struc* down.

Aids to 'nterpretation p% "6,

!. Interpretive 3rovisions in the Charter. particularly ss. ># G >% which refer to multiculturalism and gender e5uality. >. 3arliamentary and Committee -ebates leading up to the Charter should not be given too much weight lest the ability of the Charter to develop is stunted. 2. Canadian 3re?Charter /urisprudence, particularly the %ill of Rights is not relevant. @. Comparative and International 4ources can be considered, but with caution. 4ee 3atric* Eac*lem, 64ocial (ights in Canada7 p. #,@

#inding an 'nfringement
R# 7# %ig M )rug Mart -td "# !92
#) 'ig E challenged -ord0s )ay Act, prohibiting commercial activity on 4undays, as a violation of s. >;a=. ') -oes the Act infringe upon freedom of religionC L) Can consider either the purpose or the effect of the legislation to determine whether there is an infringement. A purpose that is &illegitimate&, &invalid& or inconsistent with the &guarantees enshrined in the Charter& will constitute an infringement. The relevant purpose is the one at the time the legislation was enacted. Bffects based infringements can include indirect infringements. A) &3urposive& approach from Hunter applied to find that the purpose of freedom of religion is to allow individuals to hold and manifest whatever beliefs they choose. 'oth the purpose of the Act ;compulsion of sabbatical observance= and the effect ;coercing and alienating non?believers= are infringements on s. >;a=. C) Act not saved under s. ! and is declared of no force and effect under s. :>.

Ed<ards %oo5s and Art -td# 7# The =ueen "# !,1

#) Ontario9s Retail %usiness Holidays Act, which re5uires businesses to close on 4undays, challenged under s >;a= of the Charter. ') -oes the Act infringe upon freedom of religionC L) Indirect effects must be more than miniscule in order to constitute an infringement. A) 3urpose of the Act is accepted as secular. There is no direct infringement 8 being forced to close on 4undays is not e5uivalent to being forced to participate in religious practices. Eajority finds the effect to be of putting 4aturday observers at a competitive disadvantage to 4unday observers and that this effect is substantial. C) There is an infringement under >;a=, but the Act is upheld under s. !.

Justifying an 'nfringement) *ection 1

&rescribed by La! p% "66
This re5uirement has two parts. !. Infringing acts must be e)pressly provided for in legislation or common law. ;R 7 Therens, p #,,, ruling that a police officer breaching s. !$;b= had no basis in law for doing so.= This has not been applied strictly ;8laight Communications= and may only be applicable where

14
government actors, such as police officers, overstep the bounds of the legislation. >. Infringing legislation must be sufficientlyAreasonably precise. In :r<in Toy this standard was set fairly low, as an &intelligible standard& for the judiciary. The 4CC has recognized legislature e)ists in a world of generalities, and so prefers to consider vagueness as part of the minimal impairment test under s. !. ;Taylor, /sborne, >o7a 8cotia Pharm=

R# 7# >o7a 8cotia Pharmaceutical 8ociety "# $ 9

Court considers the doctrine of vagueness in detail. It can be considered e5ually as a principle of fundamental justice under s. # or as part of prescribed by law under s. !. The rationales of the doctrine are &fair notice& to citizens and limitation of law enforcement division. of the minimal impairment considerations. owever, the court must realize language and legislation are not e)act tools and prefer to consider vagueness as part

Justification The -a$es Test R# 7# /a5es "# $$9

#) (everse onus provision in s. % of the >arcotics Control Act found to violate s. !!;d=. ') Can the violation be upheld under s. ! L) 4tandard of proof to be used is the civil one, but it must be applied rigorously. 4ee Eerits 4econd 4tage on p. # of this CAD. Also, -ic*son attempted to define a 6free and democratic society7 in terms of a set of 6values and principles7 ;top of p ##:=. C) There is no rational connection between possession of a small 5uantity and an intent to traffic, so the provision can not be upheld.

>otes "# $$$

Almost every purpose that doesn9t directly contradict a Charter value has been considered as pressing and substantial. From %ig M )rug Mart ;p. " of this CAD= the purpose must be the one originally motivating the legislation. 'ut, in %utler, this test was fudged by considering the purpose in very general terms and saying the specifics have varied over time. 'oth the rational connection and the minimal impairment stages of the /a5es test necessarily involve balancing competing interests, so the final proportionality test is often merely formal. At this stage the actual effects of the legislation must be considered, as opposed to the purpose ;)agenais=. Einimal impairment, since RJR, has been understood as merely within a range of reasonable

11
alternatives, not 6as little as possible.7 Two common arguments are that there were alternative means and that the legislation is overbroad. The overbreadth argument is more often successful.

The *ubse.uent +evelopment of the -a$es Test) Conte/t and +eference Edmonton Journal 7# Alberta ?Attorney 4eneral@ "# $!1
#) Alberta Judicature Act limits publication of court hearings in matrimonial disputes. Challenged as a violation of freedom of e)pression and defended as protection of privacy. ') 4hould courts consider rights in the abstract ;e)pression vs privacy= or in the specific conte)t in which they arise in each caseC L) Hiven by 1ilson in a concurring judgement, now accepted by the entire court. freedoms in T I4 CA4B, not in an abstract sense. A) ave to balance the public9s interest in an open court process with the public9s interest in ave to use a

&conte)tual approach& when applying the Charter. In other words, consider the actual rights and

protecting the privacy of litigants in matrimonial cases. C) Iiolation is not a reasonable limit under s. !.

The )eference 8tory

The need for deference was first mentioned in Ed<ards %oo5s. The legislature was trying to protect vulnerable wor*ers and had considered a number of different options. 4ince they had made a good attempt and finding the appropriate balance, the courts should not 5uic*ly overturn that decision. In :r<in Toy;p. #%2=, the court suggested that where the government was balancing competing interests there should be more deference that when the government is asserting authority over individuals. In effect, any choice within a &margin of appreciation& will be acceptable. owever, in RJR the court decided this bright line test was unwor*able and instead decides deference should be applied on a sliding scale. Factors ta*en into account for deference, from Thomson >e<s"a"ers. whether or not the government was trying to protect the interests of a vulnerable group, the subjective fears and apprehension of harm of any such group, whether or not the relationship between the particular harm the government was see*ing to address and the activity the government chose to prohibit or regulate can be measured scientifically, whether or not the effectiveness of action ta*en by the government can be measured scientifically, and the relative importance of the interest protected by the rightAfreedom at sta*e. Other factors worth considering inthe conte)t of deference. whether or not the impugned action was ta*en by a bodyAofficial within the e)ecutive rather than legislative branch of government,

1,
whether or not Canada<s foreign relations were implicated in the government<s decision to ta*e the impugned action, whether or not the government can be said to have acted hastily when it too* the impugned action ;especially if that action entailed the enactment of legislation=, whether or not judges can be said to have more e)pertise in the area in 5uestion than the other branches of government, and the number of different groups within society whose interests can be said to have been ta*en into account by the government when it too* the action it did ;again especially if that action entailed the enactment of legislation=. 4ee also p. #%#.

The -verride
The use of the notwithstanding clause ceases to be of effect after : years, but it can be reenacted indefinitely. This forces the government to reconsider the use of the clause every election period.

'ord 7# =uebec ?Attorney 4eneral@ "# $91

#) Hoverment of +uebec upset about the Charter and enact legislation inserting the override clause into all e)isting legislation and having effect retroactively from the date the Charter came into force. C) The retroactive effect is not allowed within the language of s. 22.

Ch 10 Application
Elliot0s 8e7en Princi"les of Charter A""lication
!. The Charter applies to the legislative and e)ecutiveAadministrative branches of the federal and provincial governments in respect of all of the functions that they perform, and in respect of inaction as well as action. All #unctions Includes where government is performing private actions, such as collective bargaining. ;-a7igne, 4odbout= 'naction 8 Dot protecting certain groups while protecting others ;under?inclusiveness= can constitute an infringemnt. ;&riend, )unmore= >. Bntities that are not formally within the legislative and e)ecutiveAadministrative branches of the federal and provincial governments will nevertheless be considered to be entities to which the Charter applies if they ;a= are subject to the routine and regular control of government, ;b= perform 5uintessentially governmental functions, andAor ;c= e)ercise the power of statutory compulsion pursuant to statutory authority. 1a2 Community colleges are controlled by government, but hospitals and universities are not. Consider whether there is &routine and regular& control of &day to day operations&. ;)ouglas College, Translin5=.

13
1b2 4uch as municipalities ma*ing laws of general application, imposing ta)es. ;4odbout=. 1c2 Arbitrator giving an order enforceable by 4tate action. ;8laight Communications, %lencoe= 2. The Charter does not apply to private actors ;i.e., actors not considered to be 6government7 for the purposes of 3rinciple J!=. ;McAinney= @. owever, if a private actor is implementing a specific policy or program on behalf of either the federal or a provincial government, that private actor will be considered to be 6government7 insofar as 8 but only insofar as 8 its actionAinaction in implementing that policy or program is concerned. ;Eldridge, %lencoe= :. The Charter does not apply to the courts when they are adjudicating private disputes on the basis of the common law. ;)ol"hin )eli7ery= ,. owever, the courts will entertain claims that the common law in this conte)t is inconsistent with 6Charter values,7 and is therefore in need of revision. ;)ol"hin )eli7ery, 8<ain, )agenais, Hill= #. The Charter does apply to the courts when they are presiding over criminalA5uasi?criminal disputes and otherwise performing 6public functions.7 ;%C4EB, )agenais=

'ntroduction) The +ebate About Application to &rivate Action

Retail, .holesale, C )e"artment 8tore Bnion, -ocal ,!3 7# )ol"hin )eli7ery "# $9$
#) Knion employed by 3urolator pic*eting -olphin -elivery since they -- was wor*ing for 3 during the union9s stri*e. Do legislation applied to secondary pic*eting, so common law tort of inducing breach of contract applied and injunction against the pic*eting was granted. Knion argued this violated freedom of e)pression. ') -oes Charter apply to courts ruling between private parties on common law rulesC L) Charter applies to the common law, but not to litigation between private parties since there needs to be e)ercise of governmental action to invo*e the Charter. C) Cannot apply the Charter here, so the appeal by the union fails. Courts should nevertheless develop the common law consistently with Charter values.

19

3overnmental Action
3overnment Actors Entities Controlled by 3overnment McAinney 7# Bni7ersity of 4uel"h "# !32
#) Kniversity policy re5uiring mandatory retirement at age ,: challenged as a violation of s. !:. ') -oes the Charter apply to univeritiesC L) Charter does not apply to private entities. Kniversities are creatures of statute and are primarily funded by the government. owever, especially in the area of staffing, universities are entirely autonomous. They manage and allocate funds independently of government. C) Kniversities9 retirement policies not subject to Charter#

>otes "# !3$

8toffman 7 &4H 8 ospital not subject to the Charter, despite higher level of government control. )ouglas College 8 Charter applied, as the college was subject to government control at any time. Translin5 8 Charter applied since Lieutenant Hoverner appoints board and can manage operations. -a7igne D Charter applies to Ontario Coucil of (egents, since they were subject to &regular control& by the Einister of Bducation. Charter applies to all actions of government, including commercial.

Entities E/ercising 3overnmental #unctions 4odbout 7# -ongueuil ?City@ "# !11

#) City policy re5uired employees to reside within the municipality. Einority concurring opinion considered whether the city was subject to Charter. ') Is a municipality subject to the CharterC L) 3erforming a &public function& is not sufficient to ma*e an entity governmental in nature. (ather, the entity must be functioning in a &governmental& way. Once an entity is determined to be governmental in nature, the Charter applies to both its &private& and &governmental& actions. A) Eunicipalities are publicly elected and can impose ta)es and ma*e laws, thus ma*ing them governmental in nature. C) The city is subject to Charter challenges and violated s. #. This was a minority decision and the issue hasn9t been considered by a majority yet.

1. 3overnmental Acts Entities 'mplementing 3overnment &rograms Eldridge 7# %ritish Columbia ?Attorney 4eneral@ "# !1
#) ospital policy didn9t provide public funding for sign language interpreters for people receiving medical services. Challenged as a violation of s. !:. ') -oes the Charter apply to the hospital when delivering health careC L) From 8toffman, hospitals are private entities. This has to be more than just a &public function&. A) There is a direct connection between the government policy 8 providing health care 8 and the alleged violation 8 not providing sign language interpretation. In essence, the hospital acts as agents for government when providing medical services and are therefore subject to the Charter. C) A s. !: violation was found. owever, private entitites implementing a specific

governmental policy or program are subject to the Charter in how they implement that program.

Entities E/ercising *tatutory &o!ers of Compulsion >otes "# !*3

8laight Communications D Adjudicators derive all their power from statutes and are therefore subject to the Charter. %lencoe 8 uman (ights Commission subject to the Charter both as implementing a specific government policy, li*e Eldridge and as having powers of statutory compulsion, li*e 8laight. It remains unclear whether citizen9s arrests by private actors are subject to Charter. J

3overnment 'naction
&riend 7# Alberta "# !*1
#) Alberta human rights legislation did DOT protect against discrimination on the basis of se)ual orientation. Iriend was fired after informing employer that he was gay and his complaint under the legislation was rejected. Iriend argued the ommission was a violation of s. !:. ') -oes the Charter apply to legislative ommissionC L) Te)t of s. 2>;!=;b= ma*es no re5uirement of positive action. Allowing a distinction between omission and e)plicit e)clusion ma*es the Charter a mere re5uirement of form, not substance. Alternatively, a deliberate decision to omit is an &act& to which the Charter applies anyway.

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C) Ommission is a violation of the Charter and protection for se)ual orientation read into the Act.

)unmore 7 /ntario "# !*9

#) Labour legislation e)cluded agricultural wor*ers from the right to form a union. ') -oes an e)clusion constitute an infringement of freedom of associationC L) 3rotecting some groups but not others both discriminates against the unprotected group and encourages a violation of fundament freedoms. owever, if there is no legislation ;as opposed to underinclusive legislation= then the Charter will not apply.

Application of the Charter to Courts and the Common La!

eliance by 3overnment on Common La! p% 0,4
Charter applies to common law when government is relying on it. In %C4EB the Charter was held applicable to a injunction issued by the court to prevent pic*eting. The injunction was issued on the Chief /ustice9s own motion, thus was an element of governmental action. In the criminal conte)t, all common law rules are subject to Charter challenges and can be modified by judges to bring them into accordance with the Charter ;8<ain, )agenais=.

eliance on Common La! in &rivate Litigation Hill 7# Church of 8cientology of Toronto "# !*$
#) Libel action brought by ill against the Church. ') Is the common law of defamation subject to Charter scrutinyC L) Charter rights do not e)ist without state action. At most, can argue Charter values are not being followed. Only incremental changes should be made to the common law. In this conte)t, the traditional s. ! balancing should be more fle)ible and the challenger is responsible for both showing the violation and that the balance is in favour of modifying the common law. C) Common law of defamation already reflects an appropriate balance between freedom of e)pression and protection of the reputation of an individual.

>otes "# !*9

Pe"siEcola, much li*e )ol"hin, involved pic*eting at secondary locations. Court fashioned common law to allow secondary pic*eting as long as it didn9t involve tortious conduct. -istinguished from )ol"hin where they assumed all secondary pic*eting would be tortious.

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Ch ,5 #reedom of E/pression
'ntroduction) &urposes of the 3uarantee
R# 7# Aeegstra "# 9 2
#'AC) 4ee p. !" of this CAD. L) Freedom of e)pression can be seen as a means to certain ends. Those ends include the proper functioning of political democracy and the search for truth. owever, freedom of e)pression could also be seen as an end of its own right, as it is necessary for self?realization of both spea*er and listener. There are some problems with using these ends as justification. J! G > only protects speech within narrow bounds. J2 is unhelpful as an analytical device and doesn9t answer why we don9t protect other forms of self realization. Charter wording is very broad and perhaps does not re5uire a single justification. Devertheless, the three rationales above should provide guidance in interpreting the scope of >;b=. These rationales are also seen in 'ord and :r<in Toy.

The *cope and Limits of #reedom of E/pression

:r<in Toy -td# 7# =uebec ?Attorney 4eneral@ "# 9$,
#) Irwin Toy charged with advertising to children, contrary to the Consumer Protection Act in +uebec. They alleged those provisions were a violation of s. >;b=. ') Is there a violation of >;b= and if so is it justifiable under s. !C L) Court sets out special framewor* for the &Eerits !st stage& analysis. !. Is the claimant9s activity protected by s. >;b=C a. -oes the claimant9s activity constitute an attempt to convey meaningC b. If so, is it non?violent in formC >. If so, has the government infringed on that protected interestC a. Is the restriction &tied to content& ;purpose?based infringement=C b. If not, does the protected activity further one of the three rationales for protecting freedom of e)pression ;effects?based infringement=C Dote that this only applies where the government is allegedy restricting ability to engage in e)pressive activiy. It does not apply where the government is forcing e)pression, denying access to government property, or failing to provide some people with an opportunity to e)press themselves when others have been provided that opportunity.

1&
A) !aGb. obviously yes. >a. yes. 3roceeding to the regular &merits. >nd stage& analysis, the court finds the sections provide an intelligible standard and thus classify as &prescribed by law&. Then, applying /a5es, they defer to the legislature9s decision based on competing credible evidence and find the rest of the test to be met. C) The legislation is a violation of s. >;b= but is justifiable under s. !.

>otes and =uestions "# 9!9

It is unclear why a special framewor* was developed for freedom of e)pression cases. This has made it very easy to show a violation of s. >;b= and all non?violent activities have fallen under s. >;b=9s protection. As such, most freedom of e)pression cases are resolved at the s. ! stage.

Commercial E/pression
RJR Mac)onald :nc# 7# Canada ?Attorney 4eneral@ "# 9!!
#) Tobacco Products Control Act prohibited advertising of tobacco products and re5uired an unattributed health warning be placed on pac*aging. Hovernment conceded the ban on advertising was an infringement under s. >;b=. ') -o eitherAboth of these form an unjustifiable violation of s. >;b=C L) !/a5es must be applied fle)ibly given the specific conte)t of each case. owever, deference and conte)t must not be carried too far. >Common sense can be used by the court to find rational connection. 2To justify a complete ban on a type of e)pression the government must show that a partial ban would be less effective. Compelling e)pression is also a violation of >;b=. A) !In performing the balancing under s. !, consideration must be ta*en for the gap in society9s *nowledge about the root causes of tobacco consumption. (e5uiring definitive evidence would paralyze governmental operation. Donetheless, cannot accept government9s assertion with no proof whatsoever. >(ational connection is easily found 8 if advertising didn9t promote use of tobacco products, why would companies advertiseM 2Do evidence was given as to the effectiveness of a partial ban or of an attributed health warning. C) Challenged provisions declared of no force and effect. +6-) La Forest / ;dissent= suggested that commercial e)pression ;advertising= was of less value and therefore deserving of less protection than other e)pressive activity. Iaccobucci / ;concurring= suggested that almost any legislative tailoring would have sufficied as a minimal impairment.

>otes and =uestions "# 1332

Five years earlier, in Roc5et 7 Royal College of )ental 8urgeons, EcLachlin had suggested that

1%
restrictions on commercial e)pression were easier to justify due to their motive being one of profit. 8laight also recognized a right not to spea*. This right could stem either out of concern that the listener would incorrectly attribute the speech to the forced party, or out of the lac* of ability to e)press a contrary view.

Canada ?Attorney 4eneral@ 7# JT:EMacdonald Cor"# "# 133,

#) Legislation enacted in response to RJR. Allows for &information& and &brand preference& advertising. Forbids &false, misleading or deceptive& promotion. (e5uires a health warning, ta*ing up :$N of the pac*aging, but it is attributed to ealth Canada. ') Are these re5uirements justifiable limits on freedom of e)pressionC L) Legislation enacted as a response to a court decision does not change the deference re5uired. Charter protects the e)pression of both truths and falsehoods. Court considers each provision, accepted as an infringement, and uses /a5es. Once again, forced e)pression as long as it is more than minor, constitutes an infringement. A) The prohibition against false advertising is a violation of >;b= but justifiable to combat promotion of tobacco products as &safe& ;p !$!$=. 4imilarly, prohibition against advertising appealing to young persons is justifiable in order to protect them from ta*ing up smo*ing ;p. !$!!?!>=. Labelling re5uirements are an infringement, but are found to be justifiable since bigger warnings have greater effect. C) All aspects of the legislation upheld under s. !.

7ate *peech
R 7# Aeegstra "# 131!
#) Oeegstra charged with wilful promotion of hatred for promoting anti?4emitic rhetoric to his high school students. ') -oes the provision in the criminal code unjustifiably violate s. >;b=C L) Application of :r<in Toy and /a5es. A variety of available alternative means does not re5uire the government to ta*e the least infringing one if it would be less effective at achieving the goal. A) Basy to find that >;b= is violated. B)ception for violence only applies where there is direct physical violence. 3ressing and substantial objectives are preventing harm to victims of hate speech and promoting a tolerant society. In assessing the proportionality, the value of hate speech is set at a fairly low level. Court rejects arguments that criminalization of hate speech in fact ma*es the speech more attractive. Although other means may be used ;and perhaps should be= use of

,4
criminal law is a valid 6minimally7 impairing choice. C) Legislation upheld. +) Limitations cannot be upheld under s. ! ;p !$2!=.

egulation of *e/ually E/plicit E/pression

R 7# %utler "# 139*
#) 'utler sold and rented &hard core& pornography and was charged with violating obscenity provisions in the Criminal Code. ') Is s. !,2;%=, detailing what is &obscene& constitutionally validC L) 4imilar application of :r<in Toy and /a5es. %ig M notionally followed but a different emphasis within a general purpose is held to be permissible. Another emphasis that, for minimal inpairment, there need not be a &perfect& scheme, just one that appropriately considers rights and freedoms. A) Iiolation of >;b= not contested. &Intelligible standard&, from :r<in Toy and /sborne found ;p !$@#=. The objective cannot shift, but court rules it was always prevention of harm associated with obscene materials. Although the emphasis used to be on moral harm, it is now on e)ploitation of woman and e5uality concerns. It is argued that pornography is valuable speech because it celebrates human se)uality. owever, the obscene materials in 5uestion do not do that as they are demeaning. (ather, this is e)pression for commercial profit which may be easier to justify an infringement. Conflicting evidence is sufficient to provide a rational basis on which the legislature can act. In determining minimal impairment, the court finds sufficient evidence that the legislature considered competing evidence in order to come up with a plan. 4uggestion that other techni5ues could have been ta*en not accepted by the court. 'alancing test 5uic*ly dealt with, since e)pression already set at a low value and legislative objective is serious.