Summary.Finalexam.Constit.2013 - Constitutional Law I

PART 1: INTRODUCTION – FRAMING CONSTITUIONAL LAW

Four Sources of Law

1. Common law (precedent)

2. Statutes

3. Conventions (Ex. Royal Assent, office of PM)

4. Actions of British Parliament/Crown

   1. Royal Proclamation Act 1763

   2. Quebec Act 1774 (est. civil law)

   3. BNA 1867/CA 1867 (consider the role of the preamble in the development of Canadian law)

   4. Statute of Westminster 1931: end of time as a colony (future laws had to be approved by CDA)

   5. JPCP until 1949

   6. CA 1982 – consideration for repatriation, s. 52, ss. 38-45 (amending), s. 35, supreme law of the land making legislation subject to judicial review

Framing Constitutional Law

• Quebec Secession Reference: four unwritten pillars of our constitution include Parliamentary democracy, federalism, minority rights, and rule of law

  • Parliamentary democracy is at the core of our nation and is rooted in the rule of law because the branches of government are all considered equal

  • Minority rights are strictly seen as language rights

• S. 33 (notwithstanding): government can override ss. 2, 7-15 (fundamental rights and legal rights), but the override is used sparingly (ex. Ford v Quebec re: facture 101)

  • Cannot be invoked for democratic rights (ss. 3-5), mobility (s.6) or rights regarding official language (ss. 16-23)

  • Was used over 15 times in QC, once in SK, and once in AB

PART 2: INTERPRETING RIGHTS

Charter litigation involves a two-step process:

1. Claimant files a claim bearing the burden to establish that rights have been infringed. Define the interest.

2. S. 1 justification by the government (onus on gov’t to prove on a BOP) - this is where jurisprudence turns: prescribed by law and can reasonably justified

   1. Government required to adduce evidence to prove that limitation is justified

All expressive activity is protected by the Charter with the exception of violence. Rights in the Charter are guaranteed subject to express limitations. The limitation must be reasonable, prescribed by law and demonstrably justified in a free and democratic society.

Historically, s. 1 was seen as an aspect of the Charter which weakened it because it showed deference to the legislative branch. The criticism on s. 1 is that it does not allow for balance of rights for which the government ought to be responsible.

In R v Oakes 1986 SCC, Dickson CJ draws on values of a free and democratic society including equality, respect for dignity, social justice, accommodation of variety of beliefs and faith in institutions that enhance individuals. He says that a limitation on these freedoms should be done to enhance these rights/core values.

The core value in our constitution is equality, but socio-economic rights are not protected by s. 15. Consider this in the face of what Dickson CJ has outlined.

Prescription by Law: (1^st step for defence by government)

• A law is prescribed when it is accessible and intelligible to citizens. When the law is visible, it is more transparent to the public (R v Therens 1985: limits can be invoked by statute/regulation of the common law)

• Intelligibility requires precision in drafting (vagueness has been considered)

• The law is not considered vague if it can foster an intelligent debate

• Generally, it is assumed that the law is not too vague

R v Nova Scotia Pharmaceutical Society 1992 SCC (on vagueness)

Facts: accused charged with conspiring to lessen competition unduly in sale of prescription drugs.

I: Did the charge violate s. 7 on grounds of vagueness?

D: appeal dismissed

Ratio: The law requires general standard of intelligibility because it is a principle of fundamental justice that laws cannot be too vague.

Reasons: vagueness is founded in the rule of law because citizens require fair notice of their rights.

Doctrine of vagueness

• Precision is not necessarily solely defined by wording of legislative enactment

• Sometimes general provisions can be more useful than overly specific provisions that prove the state with no room to intervene

• Substantive and procedural notice is required as fair notice to the citizen

R v Oakes 1986 SCC (On reasonable limits)

Facts: accused in possession of 8 vials of cannabis oil and $618. Charged under Narcotic Control Act for trafficking – legislation presumed trafficking if possession was established. Accused challenged it indicating that presumption was a violation of s. 11d (reverse onus).

I: Does the NCA violate s. 11d of the Charter?

D: yes; judgment for the PL

Ratio: After an infringement is found, to determine whether it is justifiable we must ask:

1. Is there a pressing and substantial objective? (Big M Drug Mart 1985)

   1. Government must show that there is a greater societal good

Proportionality

2. Is the law rationally connected to the objective? (must not be arbitrary)

3. Is the law minimally impairing?

   1. Requires the government to have considered options before choosing impairment (depends on how serious it is)

   2. This is a challenge to the claimant because there is a lack of sufficient resources to rebut this

4. Is the law proportional overall? (salutary effects outweighing deleterious effects in relation to objectives) (Dagenais v Canadian Broadcasting Corp 1994 SCC)

Reasons: justification of a limited right requires a civil standard (on BOP). The reverse onus violates 11d because there is no rational objective between possession of a small quantity of narcotics and the intent to traffic.

COMMENTARY: context and deference shape the Oakes test. There are various strategies of interpretation involved. Courts generally find a purpose for restriction in terms of a pressing and substantial objective.

Edmonton Journal v AB (AG) 1989 SCC (origins of contextual approach)

Facts: Pl challenged s. 30 of the AB Judicature Act which limited publication of court proceedings in matrimonial disputes on s 2b of the Charter; paper was looking for documents on a specific divorce

Ratio: The contextual approach to the Oakes test provides for a flexible approach that is more wholesome to balancing public interests.

Reasons (Cory): 2b is a core value in a democratic society and silence of expression has detrimental effects. There is no basis for thwarting it. Uses abstract approach to determining the right’s historical development.

Wilson (minority): we must consider expression in the context of the documents that the PL seeks to obtain regarding the matrimonial dispute.

Hunter v Southam (Reasonableness of Breach)

Facts: Combines Investigation Unit searched Edmonton Journal office. Concern was whether s. 8 was breached.

I: Was the search unreasonable?

D: Provisions of legislative authority to search in Combines Investigation Act are unconstitutional

Ratio: A living tree approach must be taken when interpreting the Charter and in this case, s. 8.

Reasons: we must adopt a broad approach to interpreting the constitution. The Charter has a purposive approach which allows us to understand why we must determine if the limit was imposed with reason. Big M Drug Mart: interpretation of Charter is a generous rather than legalistic one.

Aids to Charter Interpretation

1. Interpretive provisions of the Charter (ex. in tandem with s. 27 in a manner that is consistent with the preservation and enhancement of the multicultural heritage of Canadians, or s. 28 interpreted in a manner guaranteed to males and females equally)

2. Parliamentary and committee debates (ex. in Reference Re: BC Motor Vehicles Act, Lamer considers evidence from committee when considering multiplicity of people who drafted the Charter)

3. Pre-Charter jurisprudence

4. Comparative and International Sources – Ex. Keegstra: European Convention on the Protection of Human Rights and Fundamental Freedoms

   1. Patrick Macklem “Social Rights in Canada”: Courts have looked to international law that has not been ratified in Canada (Suresh v Minister)

Irwin Toy Ltd v Quebec (AG) 1989 SCC (advertising to children – deference to legislatures)

Facts: restrictions on advertising directed at children under 13 imposed by the government in the Consumer Protection Act.

I: Did the government have a reasonable basis for banning on all public advertising to children?

Ratio: Deference must be paid to the government where competing rights are balanced, findings of fact are made, a social group is at stake, scarce resources are involved, or there is conflicting social science at stake.

Reasons: courts should not second-guess allocation of scarce resources or scientific evidence adduced by the legislature.

Sujit Choudhry: “ So What is the Real Legacy of Oakes?”

• Lesson from Oakes is that we tailor judicial review to the unique context of each case

• Oakes requires evidence at every stage of the test and public policy is never founded on complete knowledge which is the dilemma with the test.

• Reasonable basis for infringement is required when there is something less than definitive proof

• There is no test for how to decide disagreements surfacing on the inferences of government from inconclusive evidence

PART 3: LANGUAGE RIGHTS

s. 93, CA, 1867: Provinces of the legislature may exclusively make laws in relation to education. Provinces cannot abrogate or intrude upon denominational rights that existed in 1867 with respect to education.

s. 133: either English or French may be used by any person in the debates of the House of Commons and in the legislature of Quebec. The acts of the Parliament of Canada and legislature of Quebec shall be printed in both languages.

Both sections were pivotal for confederation. The interpretation of s. 93 defied its original intention because it seemed to protect religion and not language (Mackell Case 1917 JCPC: ON legislature...