Freedom of Expression 2(b

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FOEs. 2(b): Everyone has the followng fund freedms: Frd of thought, belief, opinion and expression, including freedom of the press &other media of comm. IT: challenge by toy manu against QC law that prohibits advertisements to be directed at children below a certain age. Commercial speech = is protected by Charter. BUT saved by s.1  deference to the legislature Keegstra: teacher in Alb using hate speech in classes; fired from job. There are 3 VALUES that speak to FOE: demo pol participation, market ideas, personal self-fulfillment violated s. 2(b), NS by s.1 Ford: consti of language restrictions wrt s. 2(b) during time b/w CA82 coming into force and s. 33 bill being passed. Choice of lang = closely linked w/ express content RJR: Tobacco ad band and req of unattributed health warning. S. 2(b) includes right to be SILENT. Gove must still make effort to argue under Oakes. Thompson: Challenge to Elections Act wrt ban on publication of poll results in days b/f election. Look @ nature of legs and nature of activity to inform Oakes Test normal O Committee for Commonwealth: political pamphlets in airport. Public Space test: Functional v. Underlying Values Montreal: strip club that blasts music & commentary onto street in contravention of noise bylaw. Func & Underlying values test should be MERGED STEP 1: Issue + Does charter apply State the Issue : (ex) Does a stautory provision found in [section] which [what it does] violate FOE s.2(b)?(1)(a) Does the act of [X] constitute “expression” under s. 2(b)? (1)(b) Does Charter apply in this location? (see other chart) (1)(c)Does the [provision] which prohibits [act]violate FOE?  can provision be saved by s. 1? Is it a violation of the Charter Section 2b? BOP on Claimant to SHOW VIOLATION ON BALANCE OF PROBABILITIES 1(a) Does the act of [insert action] constitute “expression” under s. 2(b)? NOTE: RJR - tobac co. argued that 2 provisions violated 2(b)  1) ban on ads 2) unattributed warnings.. Maj:1) Yes violation, but not min impairng:.not saved 2) yes violation: RIGHT TO BE SILENT! Dissent: 1) yes violation & would be saved, 2) no violation b/c RP wld not attribute to cigco. Argument for Claimants (Inclusive Test): RULE: As set out in Irwin, the right to FOE should be given a broad expression (Inclusive Approach). IT involved legislation that was directed at restricting a particular content – advertisements directed at children was challenged. Yes it violated 2(b) but was saved by s.1 POLICY Content: Any activity that attempts to convey meaning is expression. Apply! (message) Form: Protects any form of expression other than violence, i.e. even THREATS of violence are protected. Apply! (verbal, visual, language, art, dancing) …Language is closely related to form and content of expression (Ford) :. b/w use of CA82 and use of s.33, vio of 2(b) b/c of lang laws req French only signs.  Relatively trivial acts, which are subj to draconian legislation, will, get the full charter review, from stage one all the way to the end Argument for Government (Selective Test): Argue that IT was wrongly decided! Should be more selective. Gov’t will argue that only CERTAIN kinds of expression should be covered. Screen out cases (ie. those causing grave social ill) and give deference to democratically elected parliament by reviewing prior to s.1 Oakes (crt power should be exercised carefully b/c we value the tradition of our demo system). Use Keegstra Values (below), apply these to the expression to see if they’re worth protecting (dissent in Keegstra, Dickson in IT) (ex) Is (action) political discourse, marketplace of ideas, personal fulfillment Apply!  critique of Marketplace: no guarantee that it will lead to truth!!! POLICY Could argue that 2b was intended to remain within the POLITICAL SPHERE… broad scope trivializes the Charter ex. do we want Charter dealing with squeegee kids? Counterargument for Claimants (argument for FOE is very important! Don’t want a chillng effect(McL) if only poli X staying with IT) was covered : societies where FOE is not protectd (affects truth and H creativity) rplcd w/ propaganda…scientific/artistic might stagnate “Free expression is an end in itself, a value essential to the sort of society we wish to preserve” (Keegstra) “FEO is seen as worth preserving for its own intrinsic value” Resolve this ISSUE! Add Policy 1(b) Does the Charter apply in this Location? Look at NATURE and USE – (Committee for the Commonwealth of Can) Private Locations- Charter doesn’t apply. General rule: no FOE in private property. Charter might apply if dealing w/ govt (considerations: rgt of access, rgt to exclude) Public Locations – Charter might apply. Montreal City (Amalgamates Committee for the Commonwealth Decisions)* Functional Test (Lamer)- Function or Purpose of Values Test (McLachlin) – Function is inadequate on its own, should property in Q approach matter by looking at interests at stake and asking these additional a. Is the trad use of the PS amnabl to the activity? questions: b. As matter of comn pract this what the spce is used a. Wld the exercis of free expres in the PS support/undermine values that for? supprt FOE grnte? c. Is it expected that expres acts would take place b. Would denying expres in this loca support or undermine the values that here? support the FOE guarantee? 1

*Montreal: Func + Values: “expression in a public place is protected only where the function of that space is associated with the expression activity and where exercise of free expression in that space is compatible with the underlying values of s. 2(b)” Resolve this ISSUE! Add policy 1(c) Does the provision violate 2b (FOE) in PURPOSE or EFFECT? (Irwin) PURPOSE is to restrict expression (content restriction): any EFFECT (content-neutral restriction): provision is restriction of expression by this type of legs is automatically a directed at some other nuisance (time, place, manner) but violation of the Charter right.  Onus on government to prove has the effect of restricting expression.  Onus on restriction is justified  this will rarely be the case.. usually claimant to show that expression (which was restricted) EFFECTS Attempts to distinguish b/w legislation that is in some was connected to one of the 3 values from Keegstra. way focused on CONTENT of the expressive act, as distinct from things such as the FORM of expression that are NOT tied to content 1.Political Discourse: In a demo society it is critical that there be free and open exchange of ideas and opinions of political and social matters. Freedom of speech is important because it ensures the chance to voice your political beliefs, and hear other political opinions are not abridged. 2.Marketplace of Ideas: Following a Hegelian approach, the pursuit of absolute truth is best served in something of a dialectical process = a marketplace of ideas. Free speech is important because it ensures that ideas can flow freely, and help us attain truth. Milton: “And though all the winds of doctrine were let loose to play upon the easth, so Truth be in the field, we do injuriously by licensing & prohibiting to misdoubt her Strength. Let her & falsehood grapple; whoever knew Truth put to the worse in a free and open encounter? …McL: “that is promotes a marketplace of ideas” and hence a more relevant, vibrant and progressive society” 3.Personal Fulfillment: The interest of growing as a human being and as a member of society if best served if everyone is free to express themselves fully T.I. Emerson: “for expression is an intergral part of the development of ideas, of mental exploration and of the affirmation of self” Argument for Claimants: eg. by singling out certain forms of meaning that aren’t to be conveyed  affecting FOE (form) Argument for Gov’t: eg. this is a form of ‘nuisance legislation’, ‘safety provision’  not focusng on contnt, just certain knds of nuisances (intimidating) Counterargument: eg. if purpose is to prevent dangers.. why doesn’t provision say that?? Why does it single out [act]? It’s targeting a kind of meaning Resolve: is there an infringement in purpose of effect? STAGE 4: Modified 2(b) Oakes Test- Can the violation be justified as a reasonable limit under s.1? BOP on govt to show that limit is justifiable Because the protection of 2(b) is so broad, it needs to be easier for Gov to justify limit (IT, RJR dissent): BUT govt must still make some effort to argue! a & b inform crt how to proceed with Oakes  loose vs. strict??  lots of deference = loose Oakes (easier to justify limit on FOE) a. What is the nature of the legislation and what deference is owed to the legislature? Crts must be cautious re: subst their opinion for that of the legislature i. Time, place, and manner restrictions are by nature content neutral and greater deference is afforded to parliament in those cases. ii. Is the legislation attempting to balance competing interest and values? Thomson: speech connected to political discourse. No attmpt to pro vul grps, no SS :.normal Oakes iii. Is the legislature attempting to make decisions based on complex social science information?  need only be resonabl when drawing lines (IT) iv. Is the legislature attempting to protect a particularly vulnerable group? a. What is the nature of the expressive activity? Is it closely connected the values outlined in Keegstra? expand here by saying if its closely connected to the values, less deference to parliament (Establish context – If the expression is close to the underlying values of FOE then the deference to parliament is lowered (strict test). If it’s further removed, then you defer more to parliament. )  Is it destructive of these values? a. Is the provision a pressing and substantial objective (or at least worthwhile)? Objective is difficult to ascertain, always open to debate. This affects rational connection stage. Look at: Intended effect (most significant), Preamble (not definitive), Legislative Intent (including Hanssard- transcripts from legislature), Context of the surrounding provisions, Language of the provision itself (purpose, probable effects). Look to the effects for an indication of what the legislature presumably intended (for the objective). a. Proportionality test: the means chosen to reach objective must be reasonable and demonstrably justified. i. Rational Connection: B/w the actual obj (determined from (c) above) and the means [impugned prov](can’t be arbitrary, unfair or basd on irrationl considerations) ii. Minimal Impairment- Test: Does the provision minimally impair the right in question? Deference plays a major role here. iii. Salutary v. Deleterious Effects Dagenais 2

Life, Liberty, Security of the Person - Section 7
Everyone has the right in life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of FJ Charkaoui: (security certificates): scheme allowed ministers to deport people on basis of certain confidential info that was not to be disclosed to person in Q nor anyone acting in their interest (here violated fair procedure and not min. impairing)  vio. S. 7, NS by s. 1 Gosselin: (welfare schemes): under 30 got less $ if they didn’t participate in govt programs  s. 7 used to restrain govnt from positively infringing on ppl’s LLSP rather than requiring govts to actively do things that would provide a certain level supporting ppl’s LLSP  no vio of s.7; s. 7 traditionally for admin of justice and negative way BUT might use s. 7 outside of this category on a caseby-case basis Chaoulli: (health care): s. 7 applied outside admin of justice  law = arbitrary: violated right to L + SP, NS by s. 1 STEP 1: Issue + Does charter apply State the Issue (does the provision violate the Charter)? Does the Charter apply? (refer to other chart) Issue: (1). Is the definition of [x] in section [x] in violation of the principles of FJ in s. 7 b/c they are (a) too vague (b) overly broad ? (2) Can the impugned provision be saved by s. 1? STEP 2: Is it a violation of the Charter Section 7? NOTE: s.7 requires a violation of LLSP and a deprivation thereof! (cannot just talk about FJ separately) Nature of the Right: There are two potential ways to construct the guarantee under s.7 (Gosselin) Single Right Theory: The section is read as a Dual Right Theory: the wording has an “and” in it, giving you both the right listed whole, and provides a single right. It is right above, and the right to LLSP. This must be a positive right, imposing positive not to be deprived of LLSP except in obligations of the state to ensure your have LLSP, just like they have positive accordance with the principles of obligations with respect to s.3 or in cases like Dunmore or Vriend.  Slattery: stronger fundamental justice. This is a negative right, argument and only activities when the government does Counterargument: govts have many obligations, they need to have leeway to where to something to deprive you of your right. allocate their $$ (ex) Does your economic need to pay for food constitute something falling under your right to LLSP? - Can argue NO, based on fact that s.7 falls into the section entitled - Can argue YES, provisions should be interpreted broadly “political rights” and that ss.8-14 are all non-economic rights SCC: Remains ambiguous, rejected arguments that s. 7 involved economic rights in the past + have never used it to impose positive obligation on state. ∴ CASE-BY-CASE basis *potentially COULD be used to impose a positive obligation on the state The principles of FJ (est. on case-by-case basis) tell the court/ legislature when deprivations of LLSP are permissible, or are not permissible.  if deprived of LLSP and it’s NOT in accordance with FJ..eg. it IS arbitrary, then that means it violates s. 7… move to Oakes Fundamental Justice (must be a legal principle, must be sufficiently clear & precise, must be sufficient societal consensus that principle is fundamental) (Malmo) 1. Laws may not be arbitrary (Chaoulli): there may be no law where its provisions are entirely unrelated to the underlying purposes that inform it.  this is almost identical to Rational Connection 2. Where person faces detention they must have procedural fairness/right to fair trial (Charkaoui) 1. A right to a hearing, 2. A hearing before an independent and impartial tribunal, 3. A decision before a magistrate on the facts and on the law, 4. Right of the person in question to know the case put against them, and the right to respond *similar to Charter Section 11(b) 3. Innocent should not be punished (Motor Vehicle) NOTE: Absolute liability ALWAYS violates principles of FJ and if liberty is threatened = violation of s. 7 Example of Provision violating principle of FJ (Arbitrariness) b/c it is (a) too vague and (b) overly broad Claimant’s Argument: Vagueness Over Breadth Not sufficiently precise – could mean a large range of things Covers too much. When the scope of provision goes way beyond Legal provisions should be sufficiently clear so that citizens underlying rationale  no rational connection. know when and if their behaviour is in violation of the law. Vaillancourt: murder was defined in a way that allowed for an Guidance to citizens. objective MR. Lamer – given the seriousness of murder, it carries a Gosselin  gives law enforcements too much discretion. heavy penalty and stigma. Provisions ought not be overly broad in Leads to arbitrary enforcement. Discretion might result in the sense that they include conducts which are not really of the kind discrimination, be exercised inappropriately. that this offense merits. 3

Government’s Response: Vagueness Over Breadth Every law has to allow for some discretion. Impossible for law Argue for judicial deference. Considering the seriousness of the to lay out in great detail every instance where the law might offense and the consequences of the act, allows for a broad definition. apply. It uses general language that must be interpreted by the The max penalty is reserved for the most serious instances of a crime. courts. Admittedly, generality can go too far, but this language To give a court the discretion to award minimal penalties for less doesn’t. Must be sufficiently flexible to apply in the future to serious instances. In practice, when it comes to court actually circs that might arise. It’s general, but not too vague. applying, it will narrow it – read it down. Applications of S.7 may occur outside of the administration of justice area (healthcare, education, anything federal), but this must be established on a case-by-case basis. (Chaoulli) OAKES following SECTION 7 Because s.7 has a limit in the form of “fundamental justice” reference, any attempt to save a full violation of the section under s.1 would be very difficult. It would need something as extreme and temporary as war, plague, or natural disaster (Motor Vehicle) Issues of national security are only considered in s.1, and even then, violations of LLSP cannot be easily justified under the Oakes test (Charkaoui). Policy Keep the courts thinking when looking at s.7 is assessing relative institutional competence, when dealing with matters closely connected to the administration of justice (reasonable search & seizure, trial, punishment), courts feel quite competent. (:. Oakes applied strictly  hard to justify violation) Oakes 1. Is the provision a pressing and substantial objective (or at least worthwhile)? 2. Proportionality test i. Rational Connection: B/w the actual obj (determined from (c) above) and the means (can’t be arbitrary, unfair or basd on irrationl considerations) ii. Minimal Impairment- Test: Does the provision minimally impair the right in question? Deference plays a major role here. iii. Salutary v. Deleterious Effects

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Sec. 32 = WHO does the Charter apply to?
S. 32 states that the Charter applies to the parlia and govt of Canada and to the legis and govt of the Provinces (this reigns in s. 52 which states that any law inconsistent w/ Charter is of no force and effect). According to DD, the Charter only applies to statutes and the CL if it is the basis of government action. DD was concerned about the possible impact of any ruling of s. 32 allowing for the Charter to apply to relations of private individuals. However, case law has subsequently modified the application of s. 32 to situations between private individuals. GOVERNMENT ACTION Issue: (ex)Does the Charter apply to a citz making an arrest of another private citz under [section] that allows for citz arrest in certain circumstances? YES The Charter Applies to these “private individuals”! (Claimant’s argument) 1. Statute The relations between a private citizen [doing X] and the private party [doing X] are governed by statute [name statute] and therefore the Charter applies (DD – Obiter). RULE: although relations b/w private parties governed by the CL are not governed by Charter, where those relations are governed by statute, they are governed by the Charter. Apply to case! 2. Entities that are “governmental in themselves”  Everything is Charter Reviewable (a) Entities that are essentially governmental in nature because of the governmental quality of their functions (Godbout) RULE: municipalities are subject to the Charter because they are a democratic institution, empowered by provincial statute, can pass their own laws and have taxing powers. Apply! (b) There is a significant degree of government control over their activities (Godbout), entities that are part of the apparatus of government (Douglas) RULE: A College is governmental where it has all 7 of its board members appointed, the minister has to approve all bylaws, gov’t provides 83% of funding and the enabling statute says that the college is a Crown agent (gov’t b.c of degree of control NOT functions).Apply! P The government cannot do indirectly what it cannot do directly; would be absurd. 3. Entities that are not “gov’t” in themselves, but that perform part. acts that qualifies as govntonly function itself Charter reviewable (a) A citizen [doing X] is exercising a POWER* delegated by the state. (ex- granted by statute) (Slaight) RULE: adjudicators and tribunals are subject to the Charter when exercising coercive powers conferred by statute. (=where an entity is given powers to issue binding powers, that coercive power is subject to the Charter)Apply! *Powers were quasi-judicial determined by 1) Ability to make binding orders, hence governmental P The problem is, would this make the court subject to charter review since they make judicial decisions, but maybe act makes difference, but courts normally not gov’t. (b) A citizen [doing X] is implementing a specific governmental policy (ie. health care) (Eldridge). RULE: where a private hospital is facilitating a program (medical services) which was initiated and governed by the government, then the actions of the hospital are subject to the Charter. Apply! (c) A citizen [doing X] is acting as a state agent*CASE-BY-CASE basis (Broyles). RULE: where a citizen is given specific instructions by the govt to interrogate an accused or prisoner, w/o informing them, they are/may be acting as a state agent. Therefore their activities are subject to the Charter. Apply! NO the Charter does not apply to these “private individuals” (Government’s argument) (a)When regular control rests with [name institution], the Charter does not apply in spite of the extraordinary government control (Stoffman). RULE: A hospital is not governmental, where 14 of 16 members of the board are government appointed, the minister has right to veto bylaws and government funding is extensive (b) Even when an institution has a public function [name function], this is not enough – it must have a governmental function (McKinney). RULE: A University which is a creature of statute, provides public service, is restricted by funding and regulation is not governmental – legal control is required. DISSENT Wilson opts for broader view of govt “sensitive…to wide variety of roles that gov’t has come to play in society and need to ensure that in all fo the these roles it abides by the constitutional norms set out in the charter” Sets out 3 tests 1) Control test: Asks whether legs, exec, or admin. branch of govt exercises general control over the entity performs a traditional government function or a function that in more modern times is recognized as the responsibility of government, 2) Government function test: asks whether entity performs trad govt function or a function that in more modern times is recognized as the responsibility of govt; 3) “Stat authority and Public interest” Test: Asks whether the entity is one that acts pursuant to stat authority specifically granted to it to enable it to further an objective that govt seeks to promote in the broader public interest. (Uni satisfies all 3) “Although this was not adopted, these factors continued to be relevant factors which surfaced in future crt decisions”

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GOVERNMENT INACTION legislative omissions YES the Charter Applies (Claimant) (a) Blainey: Charter does apply because we have a statute [name statute] and a statutory provision that restricts the application of [a section of a statute]. This essentially permits organizations to discriminate on the basis of [XXX]. Because this is governmental action, it can be scrutinized under the Charter. DD: SCC held that Blainey afforded an example of where the Charter would govern in the context of relations b/w private individuals, because those relations were governed by statute. P If application of charter used for gap here, why not everywhere? (b) Vriend: Charter does apply to legislative silence (legislative omissions).Discrimination was a failure to mention sex orientation. SCC held that the silence of the legislature in this context was reviewable and that the Charter did authorize a court to look at a stat provision and hold that a failure to deal with a certain subject matter was in violation of the Charter. Having held that Charter applies, they went on to consider whether there was a violation of s. 15. Yes there was, and it couldn’t be saved by s. 1  s. 32 doesn’t say anything about positive acts, it only matters that issue is w/I authority of the legislature. An omission can be argued as positive. *ArgCharter shouldn’t apply where gov’t merely fails to act. Charter used to modify statute to ovverride CL. Failure to prohibit discrimination bear more heavily on gorup which historically suffers from discrimination in society. (c) Dunmore: in line with CA in Blainey, and in line with reasoning in Vriend, holds that the Charter does apply, and allows court to scrutinize the repeal of the 1994 ALRA, and restriction in LRA, 1995. It holds that s. 3(b) of the 1995 Act violates freedom of association, in that it doesn’t provide agricultural workers with the concrete ability that it needs to form unions and to engage in collective bargaining. The failure cannot be justified under s.1 That silence is made explicit in s. 3(b). BUT this provision says “does not apply”. It doesn’t say agr workers “cannot form a union, are forbidden to strike”.  when private relations are governed by the CL, it is still possible to get Charter review worked in if we argue that government inaction in not entering into a given area to cure some CL defect is itself unconstitutional, requiring a legislative cure. (determined on a case-by-case basis) Dunmore: “It should be noted that this court’s understanding of state action has matured since DD case and may mature further in light of evolving Charter values” This is area of deficiency which needs to be remedied if freedom of association is going to mean something concretely on the ground, for agricultural workers.

NO the Charter Doesn’t Apply (Government) Blainey: It can be argued that [the section] doesn’t in fact permit anything. It simply prevents [another section] from covering that area, thus allowing the CL to reign. In this case it says “are not infringed”. If phrased positively, claimant would have a remedy Argument in Blainey: when court says that the Charter applies so as to permit a court to override s. 19(2) on basis of Charter, it is saying that the CL should be changed. Dolphin Delivery: Charter doesn’t apply to CL of private individuals Pepsi Cola: if statute is silent, CL should apply. Use Charter values to inform Common Law. Charter Influence in CL Evolution The CL should evolve in light of the values in the Charter (Dolphin, Hill, Pepsi). The general methodology in Charter analysis over constitutional provisions is that the person asserting the violations must prove it, and then the govt must justify the breach. Here the CL is not being challenged as being unconstitutional, but rather the courts use Charter values to inform CL evolution. (this is a more flexible process – BOP remains on person asking for modification). TEST: 1) Party wanting to change CL must prove it needs changing, 2) Courts will balance purpose of CL and values of constitution, but will not use Oakes test.

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Section 15 (1) – Equality Rights
Every individual is equal before &under the law and has the right to the equal protection &equal benefit of the law without discrimination &, in particular, w/o discrim. based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Andrews: P is non-citz who meets req for admin to Bar. Non-citz=A ground. Vio s.15, NS by s.1 Ref re valid: act estd public insurance that barred injured workers from making tort clms for injuries on job. Employ status ≠ A ground Turpin: T charged w/ murder. Wants trial by judge alone. In Alb may opt for this. Province of charge ≠ A ground Hess/Nguyen: D’s charged w/ rape. Biological differences b/w men and women ≠ A ground Weatherall: P is inmate. Argues that females guards that can search males but not vice versa is dicrim. Social realities ≠ A ground Law: P’s husband dies when she is 30yrs, CPP only kicks in for smone 35yrs+. She gets no recovery based on new LAW TEST yes age is E but doesn’t affect HumDig Mv H: M & H LT same sex rln. M wants support. Argues FLA’s def of spouse is discrim. FLA violates s. 15  “readin” to incl sm sex Corbiere: P member of Indian band, living off reserve. Barred from voting in band elects. Aboriginal/Residency = A ground Vio. S. 15, NS by s.1 BCGSEU: B.C. passed stnd for firefighters. Most women don’t pass test. Universal standard = adverse effect discrim against women, NS by s. 1  bona fide job req? Lavoie: P brings action against fed govt over policy favouring Canadian citz. S. 15 vio, but saved by s.1  once A, always A! Aristotle Definition of Equality: the core of discrimination is that benefits and burdens are distributed unequally between people who are equal, or equally between people who are unequal. The former is the traditional view of discrimination and the latter is adverse discrimination. Broad: Simple Differentiation (Hogg) Narrow: Unreasonable Differentiation (McLachlin)Rejected Any time the law makes a distinction in distribution of Broad POV because every law would be treated as having violated s. benefits and burdens b/w identifiable groups there is a 15.Discrimination should be understood as meaning differentiation violation of s. 15 meaning unjust differentiation. Critique- Broad: Too much power in the hands of judge Critique- Narrow: Very little left do at stage 2 when you apply the - laws by their very nature are about distribution of benefits Oakes test (hard to justify violation) and burdens; would be required to review every law  Burden on P: much greater – must demonstrate that there has been Would Trivialize s.15 if all laws are tested. - Relies heavily an unjust distribution of benefits or burdens similar to s. 7 on Oakes (easier to justify violation - diluted) Burden on P: slight, almost nonexistent  Similar to s. 2(b) Critique of BOTH: they force the courts to judge reasonableness… there’s no filtering out of claims.. this is what Andrews addresses Andrews adopts Unreasonable Differentiation (screens at stage1 before one gets to reasonableness of the law under attack) - Adds requirement that it has to be personal characteristic that is an ENUMERATED or ANALOGOUS ground (McIntyre for Majority) - Doesn’t discuss what A would be, but it would be ppl susceptible to being singled out for adverse treatment (discrete and insular minority) Minority Judgment Andrews: - Argued that Oakes test in context of s.15 should not be applied as stringently as originally formulated, were saying it shouldn’t be so mechanical… There should be a lower standard that does not put as high a burden on the government (easier to save) Law Test was estd in Andrews and built on in Law (meant to limit challenges to those instances where provs engage underlying purpose of s. 15) 1. Is there a distinc made b/w groups based on personal characteristics, upon which bens & burdens are distriuted, either in purpose or effect? Normal Grid Layout Adverse Impacts Grid: Provision is facially neutral but actually has differential Universe of Discourse: [what is the overall impact  for CLAIMANT! grp that defines this issue] (ex)Citz of Can w/ Universe of Discourse: [what is the overall group that defines this issue] (ex) non citz children Citizens of Canada w/non citizen children 22 yrs or older living abroad Group 1/2: [differentially impacted groups. Provision: Relates to the situation of the complainant, what the provision does to the G1+G2 must exhaust UD, and mutually complainant (ex) Permits sponsorship of children in post-secondary institutions exclusive] (ex) those with children younger Group 1/2: [differentially impacted groups. G1+G2 must exhaust UD, and mutually than 22yrs/ those with children over 22yrs exclusive] (ex) Those w/ financial ability to support children’s post-secondary edu/ Ground of Differentiation: [description of Those w/o how G1 and G2 is divided] (ex)age*of Ground of Differentiation: [description of how G1 and G2 is divided] (ex) Sociochildren.. will affect analysis b/c NOT personl economic Status Benefit/Burden on 1/2: [describes the actual Benefit/Burden on 1/2: [describes the actual impact] (ex) General Ability to impact](ex) can sponsor/cannot sport for imm Sponsor child for immigration purposes, compared to a restrictive right to do so *** 7

***BCGSEU: if provision/req is a bona fide occupational req and if standard is reasonably supported then differential impact MAY be acceptable Example of ISSUE: Does an issue of Immigration regulations violate s. 15(1) where: With respect to Can citz with non-citz living abroad, it diffs b/w those with children under 22 yrs and those with children over 22yrs AND Awards to those in the 1st group a general right to sponsor child for immigration purposes but gives much more restricted right to those in the 2 group. 2. Is the ground of distinction either an enumerated or analogous ground? Recognized Analogous Grounds: Sexual Orientation (M v. H), Residency in the context of being aboriginal (Corbiere), Marital Status Rejected Analogous Grounds: Location of Charge (Turpin), Employment Status (Ref re: Validity of Sections 32 and 34 of the Worker’s Comp Act) Reasons why something MAY be analogous: Immutable or constructively immutable (Corbiere, McL), On a modified-objective view, the characteristic viewed as fundamental to sense of self (Corbiere, LHD), Characteristic goes towards a group that is historically disadvantaged (Corbiere, LHD), The characteristic is recognized somewhere else, like an HRC (Corbiere, LHD) LHD  says A grounds are contextual; it collapses the search for A ground in stage 2 with Q of human dignity in Stage 3. McL: E grounds are legs signposts that identify suspect grounds of differentiation. A grounds are merely new suspect grounds. Analogous grounds, once found, are PERMENANT, but may be defined in a very specific way (Corbiere, McL)  but this may only extend to a subclass (place of residency for aboriginals) 3. a) Does the differential treatment constitute substantive discrimination that offends human dignity and reach the level of HR concern? What amounts to assault on human dignity? Below are contextual factors, neither necessary, nor sufficient (Law)  Group suffers previous discrimination, there is a lack of connection between grounds of differentiation and the benefit or burden being distributed (the differentiation is irrational),there is no overriding ameliorative purpose to the legislation, More important nature/ scope of the right = more likely to be a violation  similar to Oakes Salutary v. Deleterious Reasons not to find that human dignity violated: Biological Realities (Hess, Nguyen), Social Realities (Weatherall), 3. b) . Look at these contextual factors are useful in structuring the inquiry into whether dignity has been violated through discrim (Law) i. Pre-Existing Disadvantage/historical disadvantage  Stereotyping is influential in Law but there’s a real tension here, as evinced by the fact that this might suggest that legs can never make broad policies based on sociological generalizations. The tension is further emphasized by the fact that the court itself takes judicial notice of the “fact” that it’s easier for younger people to find jobs. Isn’t this a contradiction?  Turpin comes close to suggesting that a group that hitherto had not suffered discrimination could, nevertheless, be subject to discrimination ii. Relationship b/w the E or A ground and the nature of the differential treatmentsome E/A correspond w/ actual needs, capacities, circs ex. Disabled iii. Ameliorative purpose of effects of legislation  Was the legislation really meant to benefit someone less advantaged than the P? if yes :. Won’t violate human dignity iv. Nature of the interest impacted by the impugned law?  more important ben being denied/heavier burden :. More likely to violate human dignity OAKES following LAW Similar to s. 7, under Law test it would appear diff. to find a s. 1 justification for a s. 15 violation outside of a temporary and extreme situation  must have found that a differential treatment directly attacks human dig and worth of a person who is being denied a ben/burden imposed. Oakes = little def to parl @ that point.  NB stage 3 of Law Test takes into account things like Rational Connection of ground and treatment & various cost/ben calcs

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Does the Charter Apply? Section 35 = Aboriginal and Treaty Rights Aboriginal Rights & Title: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed VDP: V charged w/ selling fish in contravention of regs under Fisheries Act. No established AR to sell fish TEST for AR Dissent: dynamic apr, 20-50yrs suffi; agrees that Ab activity must form integral part of distinctive Ab culture Sparrow: S caught fishing w/ illegal net. AR to fish?  factual record incomplete…back to trial…“exising” = not extg by Crwn prior to 1982; infringement must be justified (TEST) waivers b/w historical and living heritage version of ethnocultural approach Guerin: reln b/w Crwn and Abos is FIDUCIARY. Must always maintain Honour of the Crown in these interactions Gladstone: selling herring roe on kelp = AR for a grp. Based on traveler’s journal  trading in food prior to contact. Infringement justified. Anthro & Hist evidence suffice Sappier: right to log on Crown land for building permanent homes/furniture upheld as particular right. Modern practice different from traditional practice Delganuukw: dispute over AT to large lands in BC. AT is like a fee simple, cannot use inconsist w/ trad use of land. Evid should consider Oral histories TEST for AT
Section 35 (1) Affirms existing aboriginal treaty rights (2) Includes Metis and Inuit (3) Includes rights under land claims (4) Grants gender equality and aboriginal human rights Section 35 is not part of the charter, means s. 1 and s. 33 do not apply. S. 25 clearly says that charter shall not abrogate rights & freedoms in Abo Ppl Generic Rghts: AT, cult integrity, Honour of the Crwn (presrv & advance interests of Abo grp in Q), right to concl treaties w/ Crwn, right to self-govt Approaches to Aboriginal Rights (S.15(1) refers to “existing aboriginal treaty rights” so these approaches discuss what “AR and “existing” mean) 1. Ethno-Cultural Approach: Each Aboriginal group must prove their specific rights on an individual basis grounded in their traditional way of life (maybe customs, laws, practices, traditions) Historical Approach: Determine these rights as of a Living Heritage Approach: Look at the settled way of life at the time the claim benchmark date, no new rights can arise after this was advanced and show it has historical origins date 2. Inter-Societal Approach These AR arise from the historical relationship between aboriginals and incoming European powers (these principles can be found in treaties but also customs). These Inter-societal rights are generic (apply to all aboriginals), there is a historl and evolutionary approach here Historical: Look at the inter-social “law” at a certain Evolutionary: Inter-social law evolves just like common law. date. 3. Human Rights Approach: Based on fundamental, universal, societal human rights, relate to what any human society needs to survive and flourish - These are generic rights that apply to all aboriginals, no historical component at all, find principles in model indigenous rights declarations

ABORIGINAL RIGHTS
TEST for establishing AR 1. Is there an existing AR? (Van der Peet)  What is meaning of “existing”? Sparrow: existing AR – rights that existed under traditional abo practices that had not been extinguished by Crown prior to 1982. Sparrow says RIGHTS CAN EVOLVE …Counter argument: ‘existing’ in the sense of whether they had been changed by statute a. Determine precise nature of the right – the particular practice (Van der Peet)

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(ex) Cutting down birch trees or cutting down birch trees for commercial purpose At what level of generality should AR be stated at? level of generality matters! (more abstract = more universal). Crt says @ general level rather than specific.  Crucial to be sensitive to Aboriginal perspective when determining the nature of the right (Sparrow)  But, must consider the purpose underlying s. 35(1) at this stage: reconcili of Abo prior occupation with Crown sovereignty and expectations b. VDP TEST: For the existence of an AR to be shown: three steps must be proven (give rise to specific rights not generic): i. That the activity in question played an integral role in a distinctive society. *Distinct v. Distinctive: if a particular activity from an Abo perspective was of central importance to their culture, then even if it’s not unique to their tribe, it may still give rise to a right (can’t be incidental to society, MUST be defining and central (eg. fishing is basically universal BUT found to be an AR in Sparrow) “must demonstrate…that the practice, custom or tradition was one of the things which made the culture of the society distinctive – that it was one of the things that truly made the society what it was” (VDP) … “The evidence reveals that the Musqueam have lived in the area as an organized society long b/f the coming of Euro settlers, and that the taking of salmon was an integral part of their lives and remains so to this day” (Sparrow) ii. That the activity existed prior to first contact with benchmark date [EUROPEAN CONTACT] Note: Query what is benchmark date Is it date of first contact? Date of sovereignty of the crown? 20-50 Years (LHD)? iii. That the activity is connected to the modern activity, and was never extinguished by the Crown Lamer: Practice or custom must have been in existence at date of European contact, but if it was altered BECAUSE of this contact, it will not be disqualified as a right (rights may evolve, but if arose solely b/c of Euro influence, not protected)  how much can rights evolve and still be considered an AR?! 2. Has the right been extinguished? Clear and plain intention to extinguish? Regulation does not equal extinguishment (Sparrow) 3. Has the right been infringed? (prima facie infringement)  Onus on the party claiming the right (Sparrow): (1) Is the limitation unreasonable? (2) Does the regulation impose undue hardship? (3) Does the regulation deny the right-holder the preferred means of exercising the right? Note: these are just factors (Gladstone); they do not define the concept of prima facie *** This test is usually met quite easily (Sparrow) 4. Assuming an infringement is found – is that infringement justified? (Sparrow test as modified)  Onus shift to the Crown (Sparrow) i. Compelling and substantial objective? Conservation – Sparrow ; (internally limited?...eg. Abo ppl must be given 1st priority of the catch after conservation needs have been satisfied) (Gladstone) – Allocation issues; Safety – Sparrow Other compelling and substantial objectives (Gladstone) ii. Is the pursuit of the objective consistent with the Crown’s trust-like relationship? (Honour of the Crown) Guerrin and Haida  Must be considered in light of the purpose of s. 35(1); reconcile Aboriginal prior occupancy with Crown sovereignty (Gladstone)  Must be looked at case-by-case (Gladstone)  Sparrow – has there been as little infringement as possible in order to effect the desired result?  Duty to consult with respect with respect to conservation measures being implemented (Sparrow) VDP has been critiqued for: (a) Freezing Aboriginal culture to its pre-contact state, effectively prohibiting evolution of Aboriginal culture (b) For focusing too much on culture. In many ways Del was a reaction to VDP, Del said that VDP applies only to free-standing AR, NOT to AT, which is a right to the land itself ∴ Title doesn’t require Abo group to justify practices individually, there is no cultural test for distinctiveness and even the time period for title is different ∴ the right to land must have been present at the time of Crown’s assertion of sovereignty, not time of pre-contract.

ABORIGINAL TITLE
Dimensions of Aboriginal Title  surrounds rights to land, where there is no treaty or reserve system in place. Test to est AT is from Delgamuuk 1. Inalienable Fee Simple Except upon surrender to the crown * can’t be used in any way inconsistent with traditional uses of the land. May not be used for any purpose that does not destroy ability of the land to be used for trad purposes (to protect the land for future generations) 2. Physical Fact of Occupation Prior to the Rest of Canadians 3. Held communally Delgamuukw Test for Establishing AT:  AT is generic 1. Occ of land prior to extension of Crwn sov over the land (diff. from VDP!!  b/c AT is a burden on the underlying title of the Crwn, AT would not exists as AT until Crown was sovereign) 2. If modern occupation is evidence of prior occ then need to show some real connect b/w current occ and the past (no need for strict continuity) 3. Exclusive possession at time of sov  lower than CL req b/c it acknowledges different Abo perspectives of property and ownership VDP (specific) & Del (generic) Reconciliation: all Abos have the generic right to be entitled to an analysis of specific rights! 10

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