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Four Characteristics of the Constitution

:
1. Supreme (s.52.1) – In the case of conflict with ordinary or non constitutional law (statutes & CL), the CA will override. Similarly, statutes prevail over CL.
2. Entrenched (s.52.3) – The CA may only be amended by special procedures (s.38-49) authorized by the CA (not by ordinary statute, otherwise would not be supreme):
a. s.38.1 General amending (7/50 formula) no unanimous consent. Requires 7 out of 10 provinces making up 50% of the total population of Canada AND the federal govt (Senate and HofC) to agree
b. s.41 Unanimity procedure – ie. office of the Queen/GG/LG; alter seats of a province in the HofC; composition of the SCC; amending formula; use of Eng or French lang. (subject to s.43)
c. s.44-45 Solo federal and provincial procedures (subject to qualifications)
Note: although it is difficult to change the CA by formal amendment, there are other mechanisms by which the CA evolves…ie. judicial interpretation
3. Both ‘written and unwritten’ – What does the CA include (s.52.2)? constitutional documents and constitutional CL: CA 1982, CA 1867, schedules, amendments; the word ‘includes’
means the list is not exhaustive and includes unwritten laws (Re Remuneration of Judges, Re Secession of Quebec – the rule of law, federalism, democracy, respect for minorities);
constitutional CL rules that are so fundamental that they have gained constitutional status (ie. s.7 ‘principles of fundamental justice’); conventions (ie. responsible govt); Royal Proclamation
4. Organic Body of Law – constitution is capable of growth and change (Edwards v. AG Canada)

INTERPRETATION OF CHARTER RIGHTS
Reference re Meaning of Word ‘Persons’ in s.24 of BNA 1867 (1928) – court (1) looks at the Act as it was intended as of 1867 NOT 1928: looking at purpose of the Act, comparing its
parts, social situation of society (2) looks at the Act in light of the CL (Chorlton v. Lings; Lord Brougham’s Act 1850-words importing the masculine gender includes females). 2 rules of stat
interpretation: (1) If statute explicitly overrules CL, CL trumped. If statute ambiguous, CL used to decide intent of the statute (2) language to be considered in its ordinary and popular sense
Edwards v. AG Canada (1930) – (1) decisions/precedent in countries in different circumstances should not be taken as binding evidence in Canada (2)The Act should be interpreted in a
dynamic way, it is a ‘living tree’ – living tree has connotations of autonomy and growth and CA fundamentally different from ordinary statute and the division of powers is a limit.

Reference Re Section 94(2) (1985 SCC): Re expired license, jail term, absolute liability offence, s.7 analysis; 2 parts to prove under s.7: (1) deprivation of life, liberty or security of the
person (2) whether the deprivation was done in accordance with the POFJ; persons in authority (ie. Chrétien) argued that ‘justice’ only included procedural justice/natural justice (ie. the
way an accused is dealt with–the right to represent themselves) and not substantive justice (ie. can a person lacking mens rea be put in jail?). Court held in interpreting the charter: (1)
speeches made by prominent figures are unreliable (they substitute words-ie. procedural justice-that are not in the charter) (2) statements made by a few individuals however distinguished
cannot be substituted for the multiplicity of minds that enacted the constitution –perhaps the enactors voted for POFJ bc it was ambiguous & would include both NJ and SJ (3)if we assign
weight to these statements, it will freeze the meaning of that provision in time and prevent it from evolving; POFJ found in the basic tenants of our legal system (s.8-14). Courts are to read
statutes in light of the common law. Main POFJ the court identifies is ‘innocent shall not be punished’ (principle embedded in the CL). Held: POFJ is both substantive and procedural;

APPLICATION OF THE CHARTER
Blainy (1986 referred to in Dolphin): Girl denied access to play on boys hockey team. She appeals (private party argues that s.1 of the HRC has been violated. S.19(2), however, creates an
exception to s.1, and provides that s.1 was not infringed where membership in an athletic organization is restricted to persons of the same sex. CL preserved as a result of the exception. Held:
(1) charter does not apply DIRECTLY to the OHA bc it is private (2) charter applies through medium of s.19(2). Shows how the charter through statute applies to private indiv. S.19 repealed.
Dolphin Delivery (1986 SCC) – s.52: the CA is supreme law of Canada and any law that is not in line with it is of no force or effect. s.32: charter applies to govtal parties (ie. the exec and
legisl branch – no mention of courts) – Dolphin confirms this is an exhaustive list; BC provincial CL says that 2dary picket is unlawful. Employees argued CL violates s.2b of the charter.
Held: charter did not apply to private parties governed by the CL Ratio: while the charter applies to the CL, it applies only to the extent that it governs the action of parties mentioned in s.32.
S.32 limits the scope of s.52; The significance of these 2 ratios is dwindling as the court becomes comfortable with the notion also emanating from Dolphin, that the CL needs to be applied &
developed in a manner consistent with the Charter. Qualifying statements by court: court part of govt and hence bound by the charter, but the point is that they are not an active party in the
dispute, they are only adjudicating it; although the charter does not apply directly to the CL governing private parties, the courts have the role and duty to develop the CL in conformity with
the charter…this would leave open the argument that the CL prohibiting 2ndary picket should b changed. But is applying the charter directly to the CL different from making REFERENCE to
the charter in the decision (see Hill). Criticism: ruling creates the possibility of provincial variation in the application of the charter depending on whether a province has codified a particular
area of law; greater scope of app to Quebec civil law; does it really makes sense that the courts are bound to follow the charter on the one hand, but then when it comes to adjudicating a
dispute that is not governed by the charter, they will decide the case according to some other law (ie. statute or CL)? Argument in favour of Dolphin: s.52 is outside the charter and applies
generally to the WHOLE CA. Supremacy doesn’t cover everything, it just means that if s.52 does apply, then the CA would be supreme. S.32 tells you the area that is covered by the charter.
Statute (s.52.1 - law) Common Law (s.52.1 – law)
Governmental Party (s.32.1 – actors) Charter Applies to both the statute and the govt Charter applies –applies to CL (s.52) and to govt (s.32)
Private Parties only (s.32.1 - actors) Charter applies – as a statute is govtal creation ►Charter does not apply – does it make sense that the
-applies to govt actors & private actors Note: charter applies to GOVT actors OR to certain forms of Charter applies to statute and not to CL? Courts (Hill,
performing ‘govt activities’ C below. LAW. REDSU) have applied the Charter to CL values.

Prob In Applying Charter Liberally: (1) courts concerned about how far they should stand in front of parliaments decisions and supervising its actions. Courts concerned about limiting their
role (2)this was not the charter’s purpose (3) lawyers were using the charter as their last resort argument. The upper courts were concerned about bringing guidance to the lower courts.

Hill v. Church of Scientology of Toronto (1995 SCC): D argued the CL rules of defamation violated their right to FOE. D argued that they were crown employees- govt (ie. crown lawyer).
Held: crown employees are not govt actors and so the charter does not apply DIRECTLY. Charter RIGHTS do not exist in the absence of state action (govt), so a private party can’t allege the
CL violates a Charter RIGHT. But they can argue that the CL is inconsistent with charter VALUES. In the case where the charter applies DIRECTLY, there is a 2 stage process: (1) court
considers whether there is a violation of a charter right – BOP lies on the party alleging a violation of the right (2) whether the violation constitutes a reasonable limit (s.1) – BOP shifts to the
party alleging that the limit is reasonable. The court says however, that when you merely refer to the charter as a mode of developing the CL, the BOP stays with the one alleging the
inconsistency in the charter and CL values. TEST when the CL is in conflict with Charter values: (1) s.1 framework does not apply (2) party alleging the violation has the burden of proof (3)
charter values are weighed against CL values (4) charter values then provide the guidelines for any modification to the CL which the court feels is necessary.
R. v. Salituro (SCC 1991): CL rule should be changed to fit with the Charter values if possible, but not if it would have to be more than an incremental change better left to the legislature
REDSU v. Pepsi-Cola (SCC 2002 Saskatchewan): applied the methodology set out in Hill to boldly revise the CL rules of 2ndary picketing. In this case, the court reformulates the CL in
light of charter VALUES…dolphin did not engage in this process. Held: the CL rule prohibiting 2ndary picketing should be reformulated to go in line with charter values (FOE). Held that at
CL, 2ndary picketing is not unlawful in itself, it is unlawful when it breaches the criminal or tort law. This case held that the charter can be used to bring the CL up to date: it is only
appropriate to alter the CL where it is somewhat unsettling, and where there are inconsistent holdings across the jurisdictions. In this sense, the court is clarifying CL.
CONCLUSIONS TO DRAW FROM HILL & PEPSI: (1) the court has had difficulty in drawing the line btw statute and the CL (2) the court has recognized the relevance of the charter to
the reformulation of the CL governing relations btw private parties. They change the CL rule in light of the charter. Not much different from saying the CL applies directly (Slattery).

When Does the Charter Apply (Actors – s.32(1))- note: only ONE party has to be govtal
A. Entities that are in themselves Govt (Godbout – municipality) B. Private Entities as a Whole – certain activities are govtal in nature
-charter applies to the govtal entity and all of its activities (whether govtal or private) without further -charter applies only to those activities that are govtal in nature (ie. hospitals private, but certain
inquiries as to whether its activities are govtal or non-govtal (Godbout; Eldridge) activities considered govtal). Courts look at the individual activities of the private entity.
(1) entities that are govt in nature & perform govtal functions (ie. Godbout; those listed in s.32) (1) activities in furtherance of a specific govtal program or policy (Eldridge)
(2) entities subject to regular govtal control – the entities are part of the apparatus of govt (Douglas) (2) activities performed under delegated govtal powers (ie. arbitrators – Slaight, Godbout, Blencoe)
or are ‘wholly controlled by govt or are ‘emanations of the legislature that created them (Godbout) (3) Private entity acting as a govt agent – acting on behalf of the govt/state (ie. police officer)
A. Godbout v. Longueuil (1997): - City said pple had to be residents to be employed (contract)//. Laid out the govt function test: (1) members democratically elected (2) possess a general
taxing power (take $ w/o your consent) (3) empowered to make laws (whether or not you like it, these laws bind all members) (4) derives their law making authority from the provinces.
Concludes: DD held s.32 contemplates that Charter applies beyond actors listed, otherwise, gov could have others carry out their duties and therefore shrink their own responsibilities.
A. Douglas College (1990):-challenge to college mandatory retirement// the college was an emanation of govt – it was subject to regular govtal control (ie. mandate was to deliver a govtal
program, board of directors appointed & removeable at pleasure by govt, its funding from the govt was high (83%), minister of ed approved the bylaws of the board. (1) In contrast to
Mckinney, the college was considered to be a govtal actor as the govt oversaw both the board and the by-laws, and the college was under direct ministerial control. As such the govt could
control the day to day activities of the college. (2) In Mckin the board of directors operated independently of the govt (their regulations and bylaws were not under govtal control).

Analysis: greater deference to legislative choice is appropriate: (a) where the legislature mediates btw competing claims of diff gps in the community (ie. Statute is governed by the charter and so the citizen’s are also governed by it.1: override power. They feel uneasy entering into the realm of the CL even though it has been codified in statute. Ratio: overall.2 as purely negative. v. its saying that the CL that operates in the absence of legisl needs to be revised to bring it into conformity with the Charter.33) 1. is it not applying the Charter to the CL? SCC is chipping away at Dolphin as a precedent. traditional view . against its actual cost to FOE. Counterargument: in Dunmore.32charter broad enough to include positive obligations on the govt (legislative omissions) (3) “in particular” in s. But in Dolphin. Held: even though hospitals are private. we can’t do this in the abstract.1 is warranted (b) to protect a socially vulnerable group ie.15 Challenge of the mandatory retirement policies at 4 universities (ie. Also. used heavily in the FOE. University of Guelph (1990): s.1 of the Charter must be undertaken with a close attention to context. and it d/n matter that they are closely regulated.1) • 2 Basic stages: (1) determine whether or not a substantive right or freedom has been violated (2) whether or not the limit/infringement on the charter right is justifiable under s. Eldridge v. v. There are a # of sections in the charter where a fused approach would be better (ie. FOE) and on the other hand. created by statute or heavily dependent on govt funding. Held: the power to bind parties involuntarily (w/o their consent).A. and are not acting as agent for the state. (5) just bc the universities are heavily funded did not make them govtal. Alberta) (2) deference – courts willingness to defer in certain circumstances to the legislature’s judgment (Irwin Toy) Edmonton Journal v. Charter applies/ This case is distinguished from Stoffman (contracts btw employee/er diff). v. The charter does apply here and the legislation repealing the initial state was in violation of the Charter. v. Crt considered whether the situation was an arrest. This is inevitable as the test devised in R. but s/n be attenuated to the point where they relieve the Burden on the state to demonstrate that limitations are reasonable/justifiable. they can’t give citizens more power than what they would have possessed (ie.3 excludes agricultural workers and thus must be left to the CL. discrimination based on age) Held: (1) a collection of universities were not govtal entities (they did not perform govtal functions and were not subject to govtal control like colleges were). Although govt determines the environment they function. Oakes requires a court to establish the objective of the impugned provision. s. CITIZEN ARREST as old as CL & now codified in statute.15 shows that the enumerated list is not exhaustive & analogous grounds possible Held: in a case where a govt acts in an under inclusive manner then that action can be subject to Charter scrutiny. even if an institution is public in nature & is funded by the govt and subject to regulations. Canada (1998): -publishing ban of voter opinion polls during last few days of election was unjustified restriction of FOE. then the court can assess whether the least drastic means were taken to achieve the objective – more stringent application of s. Legislatures may determine much of the environment in which universities function. Are the means chosen to achieve the objective justifiable?  i. Canada (1995): McLachlin expressed concern about the court’s willingness to defer to the legislature under s. the govt CHOSE not to include it as a ground for discrimination & this was a violation of his equality rights (Vriend argt) (2) s. The OVER-RIDE (s. B. Crt says to look to the EFFECTS of the provision to figure out objective  2b. esp if it involves weighing of conflicting social scientific evidence. B. and so it was left to the CL. • Note that the above 2 stage process does not always work. but still achieve the objective?  iii. rational connection and minimal impairment independent of the perception that the context of the expressive activity is offensive or w/o value. Qualification: can’t use the charter every time a group is excluded from a statute. Minimal Impairment Test: does the means chosen minimally impair the right or freedom? Could this measure have been crafted in a way that would impair that right less or not at all. univer get to decide themselves how they are to function. 2. The public function test is inadequate. Alberta (SCC/1998)---homo dismissed from work bc of sexuality (1) s. Ie. deference and a flexible and realistic standard of proof (BOP) should be used as they have been for s.This contextual approach is good bc it recognizes a particular right/freedom may have diff values depending on context (Wilson J’s minority judgment). Lerke). Stat regimes created to allow workers the right to strike.3 Labour Relations – certain employments were excluded from the scope of the statute (agricultural workers). Sexual orientation should be read into the statute as there was a violation of s. it’s btw the state and accused but also btw the accused and victims. Otherwise.govt restricting ads geared toward kids. the ruling in Vriend requires that the CL of employment. Therefore they are not governed by the charter R. s.33) (should the courts or legislatures have the final say?) – in some ways seems at odds with s. univ are not govtal bc they are relatively autonomous. the hospital is charged with carrying out a specific govtal program (providing necessary medical care w/o charge). s. Skier (Nova S CA 2005 – came before Dell – couple stole items at sears. Alberta statute – privacy). Violation of a right/freedom?  2. McKinny v. Hard to find areas in society that are not subject to govtal regulation – but this does not make them govtal entities. Rational Connection Test – does the means lead to the objective at all?  ii. which held that security guards. are not implementing a govt policy or program. is the objective of sufficient importance to override a constitutionally entrenched right/freedom? Note there can be many objectives and could be narrow or broad depending on how it is stated (very speculative which is a problem). When the legislature grants this power to pple." Irwin Toy Ltd.1. neither can a private citizen). when a court subjects legisl omissions to the Charter. (6) Just bc Univs must charge certain fees for certain programs they are mandated to deliver does not make them govtal. subject to reasonable limits that can be demonstrably justified in a free and democratic society R. if exercised. ‘deleterious effects’ test). Instead. (Note security guards not connected to police): security guards are not inherently govtal entities. Vancouver General(b4 Eldrid): decides hospitals private as routine control of the hospital in the hands of the hospital’s board off trustees rather than the provincial govt.494 speaks of arrests not detention). Deleterious Effects Test: weighing of the good effects v. v. they would be bound to hold that it was governed by the charter. The court has held that certain forms of expression such as hate promotion are less directly connected to the values underlying FOE than other forms of expression. Cannot simply accept what the govt has done bc the problem is serious and a solution difficult. actual or potential) R. 2nd stage of test plays a larger role in the court’s reasoning when it deals with certain charter sections (ie. BC (1997): Specific activities of hospitals can be viewed as govtal (ie. She also notes that the distinction btw balancing btw gp cases and the state imposing on individual cases may not always be easy to apply (ie. holds that the activity of mandatory retirement not subject to charter review (retirement policy was a contractual activity btw the employer and employee – not a govtal activity). as they have their own governing bodies. the value represented by the limitation on that freedom (ie. Contextual factors should be considered before AND during Oakes test: Bastariche J.2(d) of the Charter imposes a positive obligation on the state to extend protective legislation to unprotected groups. v. In cases where it’s the govt infringing on someone’s rights as the singular antagonist. McLaughlin (dissent): It is better if the Crown is required to demonstrate a pressing and substantial objective. in criminal law. Balance Act: When we assess on the one hand the value of a certain charter right (ie. v. 1 Reasonable Limits – Charter guarantees the rights and freedoms in it. court ruled that the charter does not apply to the CL in private litigation. kids and advertisers). Slate Communications: Q107 and adjudication case. bc this is like criticizing the CL THE STRUCTURE OF THE CHARTER (2 features of the Charter that distinguishes it from other Bills (1) s. IS THE GOVERNMENT ACTION SUBJECT TO CHARTER SCRUTINY? GOVT INACTION Vriend v.1 analysis on previous occasions. B. Note: the Degenais modification to the Oakes test may be seen as a response to Wilson J’s call in Edmonton Journal. The content of the expression and its value fall for consideration at the FINAL STAGE of the proportionality analysis (ie. Classic Arguments when exploring the LAW side of the argument: The statute (s. they should balance the value of what the restriction achieves in practice – its likely IMPACT on the spread of hatred. Similarly. must give way to the Charter’s requirements.494) governs relations btw private citizens (the arrestor and arrestee). This statute must be read in conformity with s. they are autonomous.1. Dell (Alberta CA – club/bouncer case): applied an earlier decision (R. (4) Regulations were not so detailed as to defy the universities from its broad autonomous function.494. but the reality is that both by tradition & their own self-understanding. Stoffman v. “The analysis under s. contextual test): 1. and if so. there is an explicit exception. which can only be accomplished by canvassing the nature of the social problem which it addresses. removes the statute containing the express declaration from the reach of the Charter provisions referred to in the declaration w/o the necessity of any showing of reasonableness or demonstrable justification. Criticism: (1) Isn’t the court making political decisions? (2) but they haven’t included ‘heterosexuals’ in this provision either (court rules it is a disproportionate impact) (3). Held: made a distinction btw detention (hold person for short pd of time where there is suspect of an offence) and an arrest (hold person for longer pd of time and where there is reasonable and probable grounds for the arrest). Held: context.494 of the CC gives authority to citizen to ‘arrest’ another citizen– courts / on whether C arrest governed by charter R.15 that could not be saved under s. kid (c) to balance the interests of various social groups competing for scarce resources (d) to address conflicting social science evidence as to the cause of a social problem RJR MacDonald Inc. Quebec (1989):. equality) TEST IN A NUTSHELL (universal/litmus test v. v. but was later repealed.8 of the charter. Still leaves open the question of whether the universities are private entities performing activities that are govtal. which does not prohibit discrimination on the basis of sex orientation. Alberta (1989) – Alberta Judicature Act that limited the publication of info arising out of court proceedings in matrimonial claims was in violation of FOE in this context: Ratio: The purpose and importance of a charter right must be assessed in context. Court says that not even a preamble in an Act can be relied on. v. for a more contextual approach to limits under s. imposing no + obligations on the state (ie. is govtal (as they are performing activities under delegated govtal powers) and so the charter applies to this case. but does not compel the distribution of microphones) Facts: CL hostile toward bargaining collectively. Dunmore – traditionally. Detentions were not authorized by the state so as to engage the charter (s. Dunmore).FOE prohibits gags.1. Why don’t the courts go this route? We are talking about an ancient CL power.1 (2) s. Lucas (1998):Cory’s majority contextual verdict indicated that defamation is far from the core of FOE and deserves less constitutional protection. Is there a diff btw silence & underinclusi Held: s.7(1) of the Alberta HRC didn’t include sex orientation as a ground for discrim. security guard stopped them and said they were being arrested. (1) s. crt should not simply balance the value of the restriction against the value of FOE.when a crt finds that a legisl omission violates the charter (Vriend. bad effects: balance btwn deleterious effects of the measure and 1) objective of the measures and 2) the salutary effects of the measures (Dagenais amendment) Subsequent Development of the Oakes Test: (1) contextual approach – courts should evaluate the value or significance of a restriction in context (ie. Oakes is now used as if it were embedded into s.2(d) rights) Arguments: In Dolphin. courts characterized the freedoms in s. Ie. Oakes (1986)– (has developed a UNIVERSAL method for assessing whether infringements of Charter rights were justifiable. if a policeman – govt agent – can’t make an arrest without conforming to the charter. (3) Govt is NOT the same as PUBLIC.33(1) – . Agri wkers held that it violated their s.8). R. Court held it was a detention and therefore need not follow Lerke. There have been exceptions to stat regimes in Ontario (ie. infringement justifiable?  2a. some substantive guarantees have a built in reasonable requirement – s. when they arrest people are exercising a govtal function. in this case. the statute mentioned nothing about secondary picketing. Thomson Newspapers Co. all private corporations would be subject to the charter. did not make it subject to the charter. which is now codified in statute in s. but in Dolphin there was silence.1. failure to provide sign interpreters). Agricultural Labour Relations Act extended the right to agricultural workers. v. s. some forms of expression such as hate speech are less valuable and less worthy of infringement) (Edmonton v. (2) the mere fact that an entity was created by statute. Yet.

DIFFERENTIATION THEORY (Hogg): Violating s. for min impairment. s. regardless of the meaning conveyed. well reasoned individual.33’s powers have been entirely eliminated. =’s received unequal things 2. (c) WEATHERALL v. In Andrews. Dickson (Maj): crt not going to treat all expressive activities on the same plane. the more the court is removed from the context of s. But Wilson argues that unlike Turpin. This is different from the selective approach which says that at stage 1.1 which gives the legisl the final say (b) Slattery (court in Ford not receptive to this argument)– s. this is not the case bc we are comparing criminals in the rest of Canada and criminals in Manitoba).1 of the Oakes test? Note in Irwin Toy. So legis have the final say most of the time. Crt distinguishes the case where the govt is acting as the singular antagonist of the individual (they seem to have in mind criminal proceedings where the govt is bringing its machinery to bear on the individual…crts in better position to make judgments). s.15.2b automatically.33 good? Argt against: (a) the reason for entrenching rights is that it protects interests that are usually not protected in a majoritarian legislative process (b) judiciary is supposed to be objective and a-political. arts and physical gestures/acts B. those that are peripheral.1: Crt embraces contextual approach whereby the stringency of the justification standard is tailored to the specific context as judged by the character of the activity which is being restricted and in part by the nature of the restriction. Most of the work done at stage 1 by the P bc once the crt is convinced that the differentiation is unreasonable. If so. This in turn puts the court in a position to judge the reasonableness of govt acts and legislation much more frequently. (4) slattery . short of violence. To do equality analysis: Differentiated GroupsGrounds of differentiationDifferential benefit/burdenrationaleis it justifiable differentiation (think of context) Interpreting s. bc men are not historically disadvantaged. NWC has to be subject to some test of reasonableness.15) Aristotle – equality involves PERSONS and THINGS (doesn’t have to be tangible. BUT ALSO those that may be advantaged today (ie. which is contrasted to the watchdog theory (chartercourtsgovts) R. unequals get = share of things.33. What happens when the govts interpretations are diff from the interpretation of the courts…who wins? Irwin says that sometimes the judgments of the legislatures will be better than that of the courts. Quebec (1988): challenge to the Quebec language laws requiring that public signs. and sometimes the courts will be better – Relative Institutional Confidence.33 should be read subject to s. McLaug (dissent) says to take Turpin with a grain of salt bc the Turpin argument lends itself to the argumt that a distinction that operates against men is not discrimination. Argument for retaining it: (a) legislature is the body that is accountable to the people and can reflect the wishes of the people (b) judiciary is not reflective of the composition of the Canadian population (c) has not been used that often Ford v. Equality does not mean same treatment for everyone bc in some cases. does the (whatever Act) violate the above FOE? i.33) (4) courts not receptive to any role in reviewing on substantive grounds enactment of NWC – slattery says that the court made this statement in a context where they were dealing with trivial matters. In Andrews. Counterargument: Where there is a NWC. 3 underlying rationales for FOE: (1). one must look not only to the legislation but also to the larger social. critically thinking. ANDREWS TEST (McIntyre):Facts: only Canadian citizens could be admitted to practice law.1 (5) How can s.4) as often as is desired (3) Must EXPRESSLY declare that a statute is to operate notwithstanding a SPECIFIC charter right (ie. must look to see whether there is discrimination in the sense that laws single out gps that have in the past experienced stereotyping. historical. Held: (1) s. then the coiurt has the ability to review (6) Is s. can be benefits/burdens). The BOP is less than that of a civil standard – it is sufficient for the govt to demonstrate that it had a reasonable basis for believing such a rational connection existed. 3. Specifically.2 but upheld under s. Majority says that the legislature must be given some latitude bc the line could be drawn anywhere. it might be grounds for violation Stage II. not possible in Canada except in Manitoba. The crt has adopted the coordinate model (Charter used by BOTH crts AND govts . it violates s. Whether the (thing done?) could be considered “expression” under 2(b) of the charter? i) Does it covey meaning through content and form (xtra step by toy)? Any expression that conveys meaning. perhaps not a lot. they are specialists in criminal proceedings. Court holds that Andrews is a scatter gun approach that allows for too much legislation to pass through to the s. McLachlin (M) – insists upon a higher Burden of proof on govt (BOP. he embraces the distinction made in Irwin Toy – that the courts are not specialists in policy making.15. Without the capacity to express criticism of falsehood.15=unreasonable differentiation (1) differentiation (2) differentiation results in disadvan to one gp (3) differentiation made on the basis of a PERSONAL CHARACTERISTIC that is either explicitly enumerated in s. Do legislatures have the ability to make just decisions – they are constituted differently as they sway with public opinion and represent the public…they carry out the will of the majority…some would argue that bc of this they do not make judgments like courts. CITIZENSHIP seen as an analogous ground. 3. differential treatment is needed. In this theory. the enumerated grounds operate neutrally – they would prevent discrimination against gps that have suffered historically in the past. harm engendered by tobacco and the profit motive underlying its promotion places this form of expression as far from the core of FOE vales as prostitution. He seeks to carve out a more limited role of the court. Critique of this viewpt: the effect would be the same with or without the notwithstanding clause. So the coordinate model balances courts and the govts). Sometimes the elected reps of the people will do better. it necessarily limits the guarantee of free expression (2) if the govt’s purpose is to restrict the form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so. sex regardless of whether you are male or female) (b) HESS v. cannot require the legislatures to act until it has an overwhelming body of proof…this would paralyze the govt in the socio economic sphere. A court should only strike down a provision shielded by a NWC where the infringement of the right is so obvious that it cannot be justified (ie. Argues that we should not apply the Andrews test or any other test mechanically…In addition to Andrews test.1 itself. v. we can’t assume that just bc courts have this regard for principle. Without it.15 and asked to judge the rationality of the legislation (like looking over the shoulders of the legislatures). posters etc need only be in French (protected by a NWC by omnibus legislation and protected by the retroactive effect). So the more you let through in s. the govt ought to show why it had gone from a complete ban on advertising as opposed to a partial ban. 7-15 – so not all provisions are covered) and must be declared WITHIN the statute itself. instead of having to quote them exactly (2) entirely valid for govts to enact NWC’s by virtue of omnibus legislation (in one full swoop) (3) legislatures may not enact NWC’s retroactively (this is consistent with the time limitations of s. McLachlin (diss –approach has since been adopted by SCC).33 be reconciled? (a) Hogg: s. If the purpose is to restrict content and form.33 should only be capable of being invoked if it complies with s.1 analysis. Even threats of violence are forms of expression (Keegstra). it also limits the guarantee (3) where the govt aims to control only the physical consequences of certain human activity. . (2) s. discrimination = differentiation. discrimination in s. is accepted (very broad defn enunciated by Irwin Toy: inclusive approach which would include virtually every law. FOE (s. Like in Turpin. Andrews is an effort by the court to limit what the court is going to be doing under s.33 has to be fitted into that basic framework.319(2) of CC.If so. UNREASONABLE DIFFERENTIATION THEORY (McLaughlin): (1) differentiation (2) burdens/benefits distributed unjustly (3) differentiation unreasonable (SELECTIVE theory. On the other side of the coin. If anything. (unintended)Effects: burden on the P to show that the effect of the govt action was to restrict the P’s expression. is the purpose or effect of the legislation to restrict FOE? Purpose: (1) if the govt’s purpose is to restrict a form of expression by singling out particular meanings that are not to be conveyed. Crt holds that we will not examine the content of expression at stage 1. AND they seem to be interests that need the most protection in our majoritarian society. courts are enjoined to take a far more deferential approach by the provision that is shielded by the NWC.15: (1) any law that differentiates btw groups of people (2) distributes benefits or burdens btw those groups in a differential manner (INCLUSIVE approach – does not select out very much at stage 1. the law being discriminatory and historically disadvantaged) is not an absolute requirement to invoke s. also required manufacturers to display unattributed health warnings on their packages. instead of fundamental violations of human rights.15 either. EQUALITY RIGHTS (s.15: THEORIES: (note that practically every law discriminates in the sense of differentiation) 1. such as torture. (In Andrews test.1. 33. people could not criticize govt crackdowns (2) Market place of ideas – essential instrument for the attainment of truth.15. as long as there is content…but we must examine it at stage 2. hate mongering and this entitles it to very LOW degree of protection under s. its purpose is not to control expression.1 sets out the framework for the charter (a guarantee of rights) and that s. it is hard for the court to prove that what they have done is reasonable under stage 2. Principle of equality can be violated in 2 ways: 1.2b) Stage I) A. (d) Does it matter if we talk about reasonableness in the first or second stage? Legislatures when drafting legislation perform the Oakes test to make sure that their objective is met and the means by which they are reaching their objective is legitimate. There should not be any single formal procedure for determining the reasonableness of legislation. that they are going to make the correct judgment. Oakes should be applied flexibly. but where everyone agrees that it violates the charter. Political process – FOE instrumental in promoting free flow of ideas essential to a political democracy. allowing a bill to pass that allows for human torture). Keegstra (1990) – teacher charged with communicating anti-Semitic statemts to students under s. which doest require sci demonstration). political context. 4. Held: infringes s. Very little work to be done by the P…bc it is at stage 2 where most of the work is done and the burden shifts to the govt to prove that the restriction is justifiable) 2. every rule in this view would be a violation of s. S. CANADA – legislation allowing female prison guards to conduct frisk searches in male prisons but not the other way around.both are given the mandate to make judgments as to the value and reasonableness of their activities in light of charter values. NGUYEN – rape case.s. Those who argue for the selective approach would say that FOE must be linked to one of the underlying values enunciated in Keegstra).1. Virtually. the crt makes an assessment of how central the activity in question is to the underlying values of the Charter guarantees and also an assessment of how grave an invasion of rights the legislation represents. the double disadvantage (ie.provision whereby the feds or provincial legislatures may expressly declare in a statute that the provision should operate notwithstanding that it contrives certain charter rights.33 is an exception to s. Content – activity is expressive if it conveys a meaning Form – a meaning can be written or spoken words. POST-ANDREWS (looking for more selective approach than Andrews): (a) TURPIN – murderer wanted to be tried by judge alone. the decision in Oakes should not be substituted for s.1 and s. if restricting form/content is an unintended effect.2. can the infringement be justified under s. The majority feels that hate propaganda is not close to the core values underpinning FOE and therefore will not apply the standards of justification as stringently…will adopt a more deferential approach RJR MacDonald Inc v. Therefore. one will select out those forms of expression which are too trivial or far removed from the Charter. LaForest (diss) – allowed the provisions to stand.33 allows the enactment of provisions to take effect simply by referring to the sections of the charter that need to be over-ridden. one never gets to the question of reasonableness if the first stage isn’t met…so here the courts are spared from having to determine the reasonableness. The P must state her claim with reference to the principles underlying FOE (as expressed in Keegstra). historical disadvantage or vulnerability to political and social prejudice apart from the legislation (in this case. although some deference was owed to the govt.15 or analogous to the items on the list – commonality btw the grounds listed is that they are NOT CHANGEABLE or easily changeable. Crt adopts NEW STAGE TO THE OAKES TEST whereby before commencing the Oakes test. adopts a deferential approach which is most observant at the minimal impairment stage.3 Sunset Clause – express declaration will automatically expire at the end of 5 years but it may be re-enacted (s. truth cannot prevail (3) Self-realization – FOE is a good in itself. Canada (AG) (1995) – prohibition of advertising of tobacco products. It is an essential part of a fully realized.

There is a burden being imposed upon the gp in the same way. H. religion. disempowering or pushing to the sidelines/marginalizing gps – why??? If the complainants are men and so do not belong to the group which is entitled to claim adverse impact. inherent characteristic. appears to import into s. Criticisms: Some argue that the enumerated/analg grounds are artificial compartmentalization. While this factor is helpful. 8.1: however. Held: when the govt decided to furnish a bunch of medical services. 4. the more likely the law is discriminatory.35 to (???) according to the test laid down in (Delgamuukw – ab title & other land rights/Van der Peet – land rights falling short of ab title) i) Can the infringement of this aboriginal right be justified according to the test laid down in Sparrow? 3 Approaches to aboriginal rights: (1) Historic Approach: Shows aboriginal rights in a pure and unsullied form unaffected by European contact. Problem: if we deny these P’s on the ground that they do not themselves belong to a gp that has suffered the adverse impact. that success will consist of adding gender as an analogous ground and if that is added that will be available to men as well as women. The argument is that it has a differential impact and that it burdens upon one gp more than the other) (b) have a law. Schafer v. some discrimination on the basis of sex. they found that the objective of enhancing the means of citizenship and the encouragement for people to take out citizenship was a legitimate objective. (4) Contextual factors considered mostly at stage 3: (a) pre-existing disadvantage. It is concerned with physical and psych integrity. Egan. v. reflects the stereotypical application of presumed group or personal characteristics OR ii.15(2)) (d) The nature and scope of the interest affected by the impugned law. and as such. national or ethic origin. like Pothier have defended the role on the grounds in focusing attention on the history and social reality of unequal power. the less effective it will be overall. age. and hence there was no discrimination. Canada) (2002/SCC)----Controversy over the 3rd stage of Law. Law Case – Facts: challenge a provision of the CPP. M. or belonging (L’Heureux-Dube in Corbiere). (c) The ameliorative purpose or effects of the law with respect to a more disadvantaged individual or gp (stated in s. BCGSEU – fire fighters where they had to pass an aerobics test.5. M v. Grounds serve to focus attention on the real sources of discrimination. There are many necessary treatments that are not covered. . ‘aboriginal’ was not a pt of distinction in the analysis…so did she mean ‘residency in the context of aboriginality’. Walsh) 3. age.15(1). personhood.15. Trudel. Alleviate the burden on the public purse by shifting the damages. BUT. So what the court probably meant as an analogous ground is ‘residency in the context of aboriginality). The argument is that there is a certain gp that is left out. Note however that courts will often look to the 3rd stage of law to determine whether or not they should find that the characteristic is an analogous ground. stereotyping. ADVERSE IMPACT discrimination – arises when neutral policy or rule impacts in more burdensome ways on few individuals to whom it applies bc of prohibited ground of discrimination – Simpson-Sears Analysis: neutral law in its operation effects gps differently  enumerated/analogous ground  raises matters that go to questions of human dignity (no difference in treatment will be apparent on the face of the challenged law or policy. etc is required to reflect actual needs. McL. Arbour (2 judges): could not consider partial and temporary difference of treatment in employment opportunities to violate the human dignity of non-citizens. Miron). a neutral law effects gps differently (BC Public Service v. it is permanently enrolled as analogous in other cases”. but there are also burdensome court judgments. Eldridge. It is so vague this test and so malleable that it is very difficult to predict what the outcome will be except in those rare cases when all 4 contextual factors pt the same way 2. Sexual Orientation (Vriend. 2 gps mutually exclusive (no overlap)& jointly exhaustive (the complete field they are serving covered) (2) Are one or more enumerated or analogous grounds of discrimination the basis for the differential treatment? (last stage of Andrews) Enumerated Grounds: race. If they succeed.) 4. P has to win ONE line of analysis. 2. Oakes Minimal impairment: inter-dependant relationship involving financial interdependency breaks down. Immutability or constructively immutable (characteristic alterable only with great difficulty). 7. and if it has been rejected as an analogous ground it cannot become one in a different context. H. 6. The nature of the differential treatment. then next week women will make the same claim and succeed. There are many burdensome. citizenship (Andrews. which is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage. mental/physical disability/Analogous Grounds: 1.Law (Lavoille v. but still pointed to the fact that non citizens have been historically disadvantaged and raised human rights issues): felt that it was discriminatory because freedom in choice in work and employment are fundamental aspects of this society. (-) aboriginal rights are often recognized in a form that does not take account of evolution. it is not essential. (+) Inuit people have advanced this approach saying that their rights are human rights. it is important to their identity. And that communication btw a doctor and patient is not a separate service. 7. colour. 1999): The ground for differentiating between same-sex and opposite-sex couples does not reflect the actual need of claimants – members of each group may equally need financial spousal support). (+) rights will be identified in a form that does not show the incursions of diminutation. effect was to give preference in the federal public service to citizens over non-citizens. decrease the chance of it overlooked Pts of difference: McLaugh in Corbiere says that once something has been accepted as an analogous ground it is always one. (ie. which typically extends a benefit to a certain gp. Aboriginal Rights: Whether members of the (??) have a constitutionally protected right under s. This is a case where there is an argument for something that is additional/not covered/not part of the original service. Slattery: The courts still do not want to follow Arbour and make the test more stringent. Legal recognition as a characteristic that has been recognized as a ground of discrimination in human rights legislation or international instruments (Miron). respect and consideration. however. The crt asks if the basis of differentiation (i. (2) Living Tree: Your heritage is what you brought forward from the past to the present. (99/SC)—same sex relationship of 10 yrs with economic dependency.15 claim (b) ***the relationship btw i. Canada – problem in this case was that ‘aboriginality’ was not a pt of difference in the analysis. Marital Status (Miron v.15 issues that are better handled in s. Otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society. (test not to be applied rigidly) – crts not called upon to 2nd guess the legislature in areas that the charter is not designed to deal with. The Charter & s. person bringing claim against crown (Rudolph) What to Look For: 1. Majority of 4 (reluctant to depart from Andrews. M wants support from the Ontario Family Law Act. 3. Canadian courts currently take that position that “once a ground is found to be analogous. H. vulnerable to becoming disadvantaged or having their interests overlooked (Andrews. BC: -parents wanted the province to provide treatment for their child who was autistic as medicare did not cover this form of therapy: McLaug speaking for a unanimous court held that the legislation did not set out to provide all medically necessary treatment for free. You have a law that covers a certain cp (ie. but is a part of the service. Eldridge Case(case of the second example) – On its face. persons charged w war crime (Finta) 4. (3) Human Rights: Aboriginal rights are in fact versions of universal human rights. She says that the broader the scope you give to s. crt considers whether the law (a) draws a formal distinction btw the claimant and others on the basis of one or more personal characteristics OR (b) fails to take into account the claimant’s already disadvantaged position in Canadian society resulting in substantively differential treatment btw the claimant and others on the basis of one or more personal characteristics. Family status has been argued as an analogous ground before the court. which follow from European contact and rule.1 analysis (correspondence test – state should have this burden) 3. L’Heurdube/Wilson – take into account context. Province/location of Residence (Turpin) 3. equally deserving of concern. things come up 2ce (ie. sex. capacities or circumstances (Weatherall) (M. Aboriginality-residence (Corbiere v. Problem is that it is easy to think of things that are immutable but are not likely to qualify as analogous grounds (ie. rather than decrease. Lavoie) 2. all firefighters) that are all required to meet a certain standard. (+) Deals with aboriginal rights in a contemporary form. Consider the depth of the violation and the importance of the interest at stake Problem With Test: 1. Post. bringing into play the purpose of s. Differential treatment could result from the effects of the law): (a) In its operation. Government was a singular antagonist and it was held that there was a reasonable basis of this stage in the case of precluding the rights. which is exactly what L’Heurdube said. Prof thinks a better way to frame this . the enumerated or analogous ground ii. (SCC. the medicare system provides the same services to deaf and not deaf pple.15 are not cure alls. stereotyping or political or social prejudice? Human Dignity: means that an individual or gp feels self respect and self worth. capacities or merits – this is the stage in which lawyers have to capture the courts attention and persuade them that your clients human rights have been tampered with (a) whether the law violates essential human dignity and freedom by imposing a burden upon or withholding a benefit from the claimant (b) in a manner that i. it had to make sure that it benefited the entire population to which they were addressed – the benefits must reach the entire gp. ill conceived govt policy out there. the scope of permissible discrimination. (3) Does the differential treatment in purpose or effect discriminate in a substantive sense. defn of spouse includes opp sex cohabitees>3yrs Differentiated: 1) sex orientation was a analogous ground (a) btw opposite sex relationship and same sex. rather than acquired (do not reflect voluntary choice). and that individuals should be protected form any arbitrary or irrational law (L’Heureux Dube). 6. lack of political influence (Egan. Auton v. Could be justified under s. The argument is that the lack of funding for sign language interpreters renders them unable to benefit from the legislation to the same extent as hearing persons. Argue: these pple should be able to raise this issue as a pt of principle).e sex) is relevant to the differential treatment (ie. Dignity (does the characteristic touch upon the essential dignity and worth of the individual). The more severe and localized the effects of the law on the claimant’s dignity. Court says that this is not a case of Eldridge where the legislation provides a service and therefore has the obligation to ensure that the service reaches the full membership of the gp.Grounds that are historical that have served as a basis for disadvantaging. does not dispute the result in Turpin which held that residency was not an analogous ground and says that aboriginal residency is an analogous ground. 5. v. Others. Decided on the 4th step that people who are in same sex relationship are in a position of vulnerability to prejudice. prejudice or vulnerability experienced by the individual or gp in question. from the perspective of a reasonable person in the position of the claimant. Canada the court doubted whether or not family status was an analogous ground but was in that particular case (weak authority) NOT ANALOGOUS: 1. should be equally accessible to them as citizens: It affronted their essential freedoms and dignity. A member of an advantaged gp is entitled to bring a s. Language generally accepted. (2) Minimal impairment was satisfied because there was not an absolute bar to employment. (1) Does a law impose differential treatment btw the claimant and others in purpose or effect? (first 2 stages of Andrews): Note: can be direct or indirect through adverse effects (Eldrige). employmt status (Re Workers Comp) 2. colour of one’s eyes). He says that moving away from an emphasis on grounds may actually increase. The denial of rights to same sex couples goes to the central rights in dignity. Relationship to listed Grounds (Miron). 5. Vriend) Note: separate analysis for each diff ground. It is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to the individual’s needs. Implications of Eldridge: how far can court go? Every law can only go so far. differential benefits/burdens) 6.

to the aboriginal culture – historical. But. practices are integral to society (3) What is required to extinguish a right? SCC upheld Calder requirement of ‘clear and direct’ intent to extinguish through regulation (a high threshold). Beginning of mvt recognizing rights. a remote period from which historical evidence is fragmentary at best. leaves estate to second wife Issue: Was the marriage valid under Cree law? Held: first marriage valid. (2)Continuity between the prior date of crown sovereignty and the present—nature could have changed and chain can be unbroken (3) At the time of sovereignty. history and traditional practices 2. so s. this must be decided on a case by case basis] R. s. a gp of judges argued for ab rights after sovereignt Guerin v. 52 (Sparrow argmt)– test (govt argued that s. The court said that after all of this. and not incidental.] There must be continuity in the CTP since contact. Woolridge (1867): Man marries Cree woman & leaves her. [4.15). Georgia rights of possession & occupancy that burdened the crown’s title. tradition or custom(CTP) integral to the distinctive culture of the Aboriginal group in question – later retreated from the distinctive aspect. the occupation of the land must have been exclusive.1 of the Charter  does not mean though that any law affecting aboriginal rights will automatically be of no force and effect by the operation of s. legislation issued by the Crown extinguished aboriginal title. v. He went onto hold that the legislation passed in BC prior to its entry into confederation in 1867 did not extinguish aboriginal title (absence of clear language in the legislation eliminating the right). Van der peet rights 2. Rationale: ab lands are the heritage of the gp and in effect is a right that is formulated with a view not only for the present generation but to generations to come. Delgamuukw v. Doctrine of Radical Discontinuity (Vajesingji Argued that whenever the British crown acquired a new territory over seas. Test for identifying an Aboriginal right:1. the operation of its title would be governed by its own laws and customs. BUT courts will presume that the (Oyekan v. In order to Joravarsingji v.35. (5) Fiduciary Duty: The government has the responsibility in acting in a fiduciary capacity with respect to the aboriginal peoples (generalized Guerin principle and constitutionalized it). critical pd is contact) – ie. it is there to shield the guarantee of s. Distinctive=it is a claim that this tradition or custom makes the culture what it is/does not mean exclusive to one culture (4)Evidence: the court should interpret the existing evidence in a manner that is conscious of the special nature of ab claims… ie. Indians claim land sold for much less than what they had agreed. you would have to show the court an Act of the crown or statute recognizing the rights.1 and s. does the legis in question have the effect off interfering with an existing ab right? b. In the end. MAJ (4/7)-recognized ab title as a legal right that does not owe its existence to the Crown but to historic occupation (though extinguished by 19th c. v. fishing) does not disqualify it from being an aboriginal right. failure to so gives rise to legal liability. A legal right derived from historic occupation and is independent of Crown recognition (citing Calder). 35 could be used to remedy unjustified restrictions. re-run of Calder.] To be integral. Gladstone SCC 1996 Van der Peet applied to EXTEND protection to commerce. CL principle derived from the notion of fee simple. as a practice that is widely shared (ie. those customs that existed in diminished. there may be no written record or the practices. fishing).35 could not revive rights that were extinguished by legislation prior to the enactment of CA 1982.continuance of abor land rights after the crowns acquisition of sovereignty. the existing rights of the inhabitants of that territory are automatically terminated. however joint title can also be recognized. Ie.35: Sparrow challenged conviction under Fisheries Act for using too long a fishing net by claiming an existing aboriginal right to fish under s. but must be read in – either by way of parallel with the charter or a different structure. 1. AG (73/SCR) Nisga’a claimed their title that they had from memorial was unextinguished by subsequent legis Acts. the Queen (84/SCR) Mosquim band surrendered land to govt to rent out to golf clubs ($ applied to ab account).35 into the CA. Two Types of Rights Recognized in Delga: 1.24) doesn’t apply. Generic Rights (do not vary from gp to gp. (6) Justification Test: S 35 is not subject to s.35  Not part of the Charter  S. Held: govt legally liable in damages.35 declared them in a contemporary form rather than in their original/historical form. Van der Peet (SCC. which is not articulated fully in s. Dickson – bases his decision on doctrine of ab title (communal right vested in an ab pple which is inalienable except to the crown). S. doesn’t say anything about whether another Indian gp in Canada has that same right – ab rights are SPECIFIC rights not general rights Integral and distinct: integral is central and significant. R. were they consulted. Note: could be alienability under this doctrine (unlike doc ab title) Doc of Common Law dispossession The crown is the source of all title & unless you show that your title stems from the crown (ie. requiring proof of customs from prior to contact. It doesn’t itself guarantee anything. does the regulation impose undue hardship 2) Is the infringement justified? A) The legislation that is effecting the aboriginal right must have a valid and pressing objective (b) Do the means chosen uphold the honor of the fiduciary relationship between the crown and aboriginals? (Requirement: they should have first priority after conservation interests). Note: Delga test covers claims to ab title. Further s. and which in many cases.(1) Is there a prima facia infringement on ab rights (burden on aborigl)? a. Ie. BUT historic date is used as guideline. This is a laborious process that brought s. Since the Nishka couldn’t obtain a FIAT decided against the P’s.35. Nisga’a lost – on pt of technicality. *Doctrine of Continuity The incoming sovereign may at its option recognize or disregard existing rights (acknowledges doctrine of radical discontinuity). Adele [1957]) incoming sovereign recognizes existing rights in the absence of evidence to the contrary. Issue: Did their aboriginal right to fish include the right of sale/barter? Held: prior to European contact exchanges of fish were for food purposes. including rights in relation to land fall short of ab title. they would just meld into normal rights of all Canadian citizens – wouldn’t be sui genesis.s. English or French law immediately [1929]) took effect and the only rights that would be recognized would be those recognized by French or English law. Decision portrays ab peoples as autonomous nations living within the protection of the Crown but retaining their territorial rights. AND court won’t recognize new rights. have to find a statute or something of equivalent effect that disallows aborig rights.35 from penitential adverse effects emanating from charter guarantees (s. legislation that limited a right could be challenged under s. Although there was evidence of small scale trade.Worcester v.35 can’t be just a symbolic recognition. S.abori title did survive the crown’s acquisition of sovereignty (doct of continuity and abor title). While rights by then extinguished could not be revived. Consequence  when the crown came in. if they previously used the land to fish. (2) How do you prove an existing right? SCC favours a modified historical approach. (4) What does ‘recognized and affirmed’ mean? Argument of the govt that ‘recognized and affirmed’ did not guarantee the rights: the court rejected this argument.ethno-cultural approach: the right must be an element of a practice. Aboriginal legal systems continue after contact.33 have no application. Their right developed in the wake of contact & was not an ab right.35 must have its own distinct internal structure.35 not cited. BC (1997) -Gitsan claimed land in BC. though Crown retained ultimate title (doc of abor title). political organization and CL (doctrine of abor title) MIN (3/7) –ab title predated historic occupation and survived Crown sovereignty. BC land ordinances). s. practice.35 in affirming ab rights did not provide a constitutional basis for challenging). 3) Has there been as little infringement as possible? [has there been compensation. chronologically excluded commercial rights. the SCC failed to decide the question whether ab title had survived in BC and still existed tot the present day. but presupposed a couple of things: 1. Do Aboriginal Rights Exist? Doctrine of legal vacuum (R v. The character of that collective right is not determined by the laws of the people in question (in this case. Existing Rights established by historical practices but are not frozen as they appear in 1982=allowed to evolve over time (‘existing’ to be interpreted flexibly. but had to surrender to crown as intermediary – gave rise to fiduciary obligations (akin to legal trust) whereby Crown can only dispose of Native lands to their benefit. So the court didn’t say how one proved an aboriginal right. so the gp that used its land to fish in the past. 1996 – How Ab rights are identified: Aboriginal woman caught selling salmons. crown grant/legislation) courts won’t recognize it. Sec of State (1924)) recognize aborig rights. Sliboy European colonial powers declined to recognize that indigenous pple had any legal rights. could use it for dairy farms. Van test covers other ab rights. And on that pt there was a concurrence btw Judson J and Pigeon. the evidence did not rise to the level of establishing a full flege right of selling fish as an integral part of their society. This allows for modest evolution of CTP such that the right may be recognized in modern form (rights not frozen as per Sparrow)…but excludes changes that arose from European contact [5] views abor rights as specific to the gp in question – the fact that a particular gp comes before the court and argues successfully that it has a certain abor right based on its cuture. 3.] The CTP must have existed prior to European contact – the reason for this is that if they looked at abor rights at this time. Judson J Majority . even if title continued to exist. the CTP must be a significant. highly regulated form were recognized and could form a basis for a challenge to the regulations. Thus title survived Crown sovereignty (Calder’s doctrine of continuity) and could NOT be extinguished w/o voluntary surrender/legislation. What is its effect? On its construction and the way courts have approached it. But for the 1st time. Hall J . evidence at the trial that there was some form of human habitation there. Note: inalienability under this doctrine. Connelly v. When the crown acquired sovereignty (=power) it acquired the underlying title to the soil as a result of its acquisition to the territory. aborig title recognized in Delgamuukw . ContactSoveffective Sov Test: (1) land must have been exclusively used and occupied prior to sovereignty-only requires significant connection to the land. (gives effect to *2 theories) Calder v. Subject to a limitation: the gp may not destroy the land or lay it waste and render it unusable for its original purpose. It gave exclusive rights of use and possession to the indigenous pple unless they are surrendered by (1832)) – chief justice Marshal treaty to the crown. s. The court in the course of discussing ab title cited the Calder case and treated it as establishing that the doc of ab title as a legal right had been confirmed. although lawfully caught could she sell and bartor the fish. which is the strongest & most complete form of ab land rights.35 had been put in place after extensive campaigns by aboriginal people. Unique limitation –abs could not alienate land independently. [2. 2. there was a very high standard governing extinguishments: a regulation would not de facto extinguish a right – rather.25 is in the Charter and applies to aboriginals. although there need not be an unbroken chain. rights NOT FROZEN to particular time (like patriation 1982) or regulated form. Each ab nation would have its communal title. return to less-regulated form. is the limitation unreasonable? C. However. not occupation distinctive to culture (ie. SIMILAR TO DOCTINE OF ‘DISCOVERY’ – Europeans who first discovered the land got title to it even if it was already occupied by abor pple. But aborig land rights continued as McIntosh (1823). Indian law did not cease to exist with the arrival of Europeans (continuity theory/rejection of legal vacum). Pigeon J held that the P’s required a FIAT to sue (permission by the Crown to be sued). Title is communal in the sense that aborig title is the title of the group. Those seeking to argue that abrog rights no longer exist.35 (1) Existing:=unextinguished rights at patriation (1982). Specific Rights (vary from gp to gp. and Crown was presumed to accept ab title in the absence of ‘clear and direct’ legislative steps (continuity). The remedy provision (s. critical pd is sovereignty) – ie. (Milirrpum) *Doctrine of aboriginal title (Johnson v. ethno-cultural test [3. they have to be able to continue to do that today to some extent. customs SO laid down a very stringent test. S. Sparrow (90/ SCR)-first interp of s. the sovereign’s intention must be clear and plain if it is to extinguish an Aboriginal right (Calder). Indian) or English law *conflict btw the 2 runs thu the cases it is a title which is sui generis. Sui Generis: (1) held communally (2) source of title (3) inalienability-fiduciary duty (4) ab right is a burden on the underlying title of the crown (used the doctrine of ab title) Content of Aboriginal title: LaMer in dealing with the question of aborig title held that it was a UNIFORM right that enabled its possessors to use the land for any purpose it saw fit regardless whether those uses had been made at the critical historical date in the past.

right to honourable treatment by the Crown (Haida Nations) 7. Prof – this is paradoxical that you would have a metis community living here and right next to them a cree community. abor title (specific right: specific territories) 2. right to self- govt 6. Crts reluctant to do so bc the pd btw Euro Contact and Effective Sov the abs struck up commercial relations with the Europeans. Their Cree neighbours will fail bc they will not be able to prove at the time of contact that they were engaged in the fir trade. right to conclude treaties with the Crown 4. right of cultural integrity 3. customary law (Woolridge) 5. Court will be impelled to clarify this pt of critical date and move up to the date that it laid down in Powley. and traditions that are integral to the Metis community’s distinctive existence and relationship to the land”. So the court chose EFFECTIVE sovereignty (effective occupation and control) as the critical date. (2)But Prof says govt can regulate this using Sparrow Justification Test . at the time of effective control. and usually post-sovereignty. Both of them go to court and argue commercial rights to trade firs. customs. Right to a livelihood Powley DETERMINING the RIGHT: Analogize to Van der Peet the test to Metis practices should focus on: “identifying those practices. The metis who are heavily involved in the fir trade.Other Generic Rights: 1. Metis are by definition post-contact (can’t have pple of mixed decent without contact). Slattery’s Approach (1)Prof predicts crts will say that Van der is wrong and effective sov is right. So the court had to come up with a critical date suitable to them. have ab rights.