Charter
Section 7 Framework: CH DPF
-a) Threshold: Applies when “life, liberty or security of the person” are impaired (s. 7)
-*NB: only directly invoke these if trying to challenge a specific statutory provision> if not, you get the same result re scope of PF under CL
-applies in narrower contexts than CL DPF but is more expansive pfjs encompass CL DPF, but the CL DPF is not constitutionalized (Singh)
> everyone “physically present in Canada and by virtue of such presence amenable to Canadian law” is entitled to s. 7 right (Singh)
-examples of s 7 values engaged:
Where it involves action overseas, there must be a causal connection to the Cdn govt (Suresh):
Refoulement or prolonged/indefinite detention (Charkaoui)
Serious state-imposed interference with psychological integrity (G(J): welfare authorities seized child)
Deportation to face persecution (Singh) or significant risk of torture (Suresh)
Delay caused by ODSP eligibility process such that it caused extreme hardship (Wareham)
-examples where s 7 not engaged:
Reputational or psychological stress does not qualify unless it is extreme (Blencoe)
Delay from an admin proceeding does not qualify unless it is extreme (Blencoe)
Extended detention scheme if accompanied w regular review (Charkaoui)
-b) Content of CH DPF
Where statutory scheme infringes the CH DPF, a ct may use the CH may strike statute and impose requirements (Suresh> use Baker factors)
PFJs are flexible in their content, s 7 does not require a particular type of process but a fair process having regard to the nature of the proceedings and the interests at stake (Charkaoui)
CL informs content of duty once threshold is crossed: the greater the interests at stake, the greater the procedural protections (Suresh)
Encompasses the right to a fair hearing, specifically (Charkaoui):
An independent adjudicator
Right to know the case against you
The right to answer that case
Oral hearing is required where credibility is at issue (Singh)
Requires reasons (Suresh)
Encompasses disclosure, but not required if the material is a legal opinion or can be limited if the materials are sensitive for matters of national security
(Pritchard; Suresh; Charkaoui II)
Limitations:
Doesn’t require state funded counsel (Christie)
weighing of stat objectives and individual’s rights should occur in s 1 only (Malmo Levine; Charkaoui)
c) s 1
Security concerns shouldn’t be used to justify s 7 violations (Charkaoui)
Courts very reluctant to uphold s. 7 violations under s. 1: that which violates pfjs very unlikely to survive Oakes test (G)(J))
Not minimally impairing if they are alternate approaches that would better balance stat objectives and individual’s rights (Charkaoui)
Examples where violation not justified under s 1:
Singh: IRPA scheme which denied right to oral hearing where credibility at stake
Suresh: exercise of discretion (as opposed to legislation itself that provides discretion) resulting in sending refugees to face torture as the Minister failed to provide adequate safeguards and reasons
Charkaoui: security certificate scheme violates bc in camera, ex parte hearings violates right to a fair hearing as individual doesn’t get to respond to case
Standard of Review for Admin Bodies CH Decisions
Overview
-SCC has fluctuated inconsistently in regards to the standard of review for admin bodies CH decisions, in terms of:
-a) if s 1/Oakes should be used, or an admin law approach that incorporates CH values
-GVR Transport; Multani; Slaight: s 1 for acts of admin discretion
-Lake, Trinity Western, Chamberlain: admin law approach
-b) what standard of review should be used if using an admin law approach:
-Martin; Trilogy (Douglas/Kwantlen/Cuddy Chicks): correctness standard
-Chamberlain: reasonableness
-c) if only the impugned legislation is under review, or also the admin body’s decision,
and if these attract different standards of review
-Dore changed the legal landscape in that it clearly states that admin bodies decisions re exercises of discretion that engage the CH will be assessed on a reasonableness standard
-for laws of general application, use s 1
-however, it also leaves open some ambiguities and concerns
Dore Framework
1. Threshold: Application > Is it a discretionary admin decision? (Dore; Slaight)
a) Rule: Discretionary Decisions undergo a Reasonableness Analysis (Dore)
-s 1 only appropriate for a law or rules of general application
-for an admin decision that violates individual rights and is discretionary, the appropriate
approach is a reasonableness standard of review
b) Application: Distinguish if Decision is Discretionary (Slaight)
-i) determine whether disputed order was made pursuant to legislation that confers, implicitly or expressly, the power to infringe a CH right:
- Extradition Act: example of legislation that explicitly authorizes the infringement of a CH right (s 6: mobility)
-Controni: each extradition is a PF infringement, the Cr must show each case is justified
-yet, in Lake, although followed Controni in that extradition = PF infringement, refused to apply s 1 test to ministers decision to extradite > reasonableness standard conducted instead > Dore
- Little Sisters: statute gave express legislative authority and discretion to infringe rights
-ii) if the power to infringe comes from legislative authority, the law must undergo an s 1 analysis:
-constitutionality of rule assessed on a correctness standard
-onus under s 1 falls on the state
-*NB: if reviewing an...
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