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Summary.Finalexam.Constit.2013 Notes

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CONSTITUTIONAL LAW SUMMARY - FINAL EXAM 2013

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 a. Royal Proclamation Act 1763 b. Quebec Act 1774 (est. civil law) c. BNA 1867/CA 1867 (consider the role of the preamble in the development of Canadian law) d. Statute of Westminster 1931: end of time as a colony (future laws had to be approved by CDA) e. JPCP until 1949 f. 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 o 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 o 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) o Cannot be invoked for democratic rights (ss. 3-5), mobility (s.6) or rights regarding official language (ss. 16-23) o 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 a. 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.

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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: (1st 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

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CONSTITUTIONAL LAW SUMMARY - FINAL EXAM 2013

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

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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 a. 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?

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CONSTITUTIONAL LAW SUMMARY - FINAL EXAM 2013

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 is the dilemma with the test. founded on complete knowledge which 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 cannot outlaw French as a language of instruction). With the establishment of Manitoba in 1870 and the protection of French culture, the French started noticing the possibilities for protection. In the 50s-60s, there was a belief that federalism could not work given the language divide. The spark for change began when the Official Languages Act, 1969 passed. The act was later interpreted as holding declaratory power by the courts. The Charter does not address language rights for Quebec; the only reason English has a status in Quebec is because of s. 133. ss. 16-23: exemplify a modern understanding of language rights in the Charter. s. 16: English and French are the official language of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

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s. 16(3): Parliament and the provincial legislatures are encouraged to legislate with respect to language s. 17(1): everyone has the right to use English or French in any debates and other proceedings in Parliament 18(1): statutes, records and journals of Parliament shall be printed and published in English and French and both versions are equally authoritative 19(1): Either English or French may be used by any person in, or in any pleading or process issuing from any court established by Parliament. s. 20: requires federal institutions to provide services in FR and ENG from head offices ((2) applies to NB) s. 23: citizens whose first language learned and still understood is that of Eng or Fr linguistic minority population of the province in which they reside or those who have received primary school instruction in Canada in Eng or Fr and reside in province where language in which they received instruction is language of Eng or Fr linguistic minority have the right to have their children educated in primary/secondary schools in that language in that province. (does not include preschool or post-secondary). s. 24(1): remedy provision - "appropriate and just remedy in the circumstances" (leading case is Doucet v Boudreau 2003 SCC with four part test)
*All subsections (2) between 17-19 apply to NB. All subsections (3) don't apply to QC (was not considered politically savvy for QC to have asked that). There was push for these sub-provisions to apply specifically to ON, but there was resistance, which is why there is now a French Services Language Act. Sections 125-126 of the Court of Justice Act require French rights within the courtroom. Historical Blurb The Act of Union 1791 resulted in the assimilation of the French language. Even with the Quebec Act 1774, French language rights were not guaranteed. State intervention became justified when prevalent views began to evolve about Anglophones perceived as having better jobs and being more educated in Canada.1 Intervention was required to preserve the weight of Quebec in the federation.2 While federalism was adopted to address language rights issues, ss. 91 and 92 do not address language issues. S. 133 was drafted to avoid prejudice with minority language groups. When the Official Languages Act was enacted, Jones v AG (NB) 1975 SCC upheld that the s. 133 did not preclude Parliament or a legislature from conferring
1 PA Coulombe, Language Rights in Canada 2 Ibid.

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CONSTITUTIONAL LAW SUMMARY - FINAL EXAM 2013

additional rights and privileges in respect of English and French languages. Further, Devine v AG (QC) 1988 SCC provided that the National Assembly had the jurisdiction to enact Charter of the French language that mandated the use of FR in commercial dealings. AG Quebec v Blaikie 1979 (No 1) SCC (language rights in administrative tribunals) Facts: claim concerning the interpretation of s. 133 in the face of the Charter of the French language I: Does the right to use Eng or FR before any of the courts of QC extend to administrative tribunals?
D: yes Ratio: S. 133 applies to all provincially established and administered goals, including adjudicative tribunals. Reasons: We must be flexible with our reading of the constitution pursuant to the living tree doctrine (Edwards v AG). S. 133 applies to courts established in s. 96 and those established by the province and administered by provincially appointed judges). Societe des Canadiens de NB Inc v Association of Parents for Fairness in Education 1986 SCC (*Note that at the time of ruling, bench was pressured on FR language issues given many were Anglos; result received with criticism because of restrictive approach) Facts: appellants brought action seeking declaratory and injunctive relief of the immersion programs that were being instituted in English schools. At trial, the judge was Anglophone. I: do we need interpretation services where main party is presenting in FR, but the judge is not French speaking?
D: appeal dismissed; no Ratio: The right to be heard in the official language of one's choice is guaranteed in s. 19(2) of the CA 1867, but that does not guarantee that one will be understood. Reasons (Beetz J): the right to use language before a court does not guarantee the right to be understood because we have to consider the rights of lawyers and the rights of judges too. Language rights are not normal rights - they're products of political compromise. Dissent (Dickson + Wilson): right to be heard in official language means the right to be understood. All rights are the result of a political compromise.

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