Canadian Constitutional Law

Question 1

What two features does BNA Act operates based on?

Answer 1

Parliamentary Supremacy or Sovereignty and Federalism.

Question 2

What is Parliamentary Supremacy?

Answer 2

It is elected representatives of the people assembled in Parliament with unlimited power to make law.

The role of the Courts here is limited to deciding cases by interpreting as laid down by Parliament or as defined by common law.

In this context, judges do not generally have the power to invalidate laws that have been enacted through the democratic process of parliament.

Question 3

What is Federalism?

Answer 3

The courts act as a referee in deciding whether legislative matters fall within the jurisdiction of the federal or provincial governments. This is merely a jurisdictional question, and courts are limited to these decisions.

Question 4

Pre-1982 antecedents of the Charter:

Answer 4

the common law constitution made up of judge-made rights, such as the rights to vote, of speech, and of the person. Also, includes the rule of law. Common law rights emerge organically out of the decision of the courts.

Question 5

Roncarelli v. Duplessis (1959)

Answer 5

Brief Facts: The plaintiff alleged that the licence had been arbitrarily cancelled at the instigation of the defendant who, without legal powers in the matter, had given orders to the Commission to cancel it before its expiration.

Final Judgement: By wrongfully and without legal justification causing the cancellation of the permit, the defendant became liable for damages under art. 1053 of the Civil Code.

The SC held that the premier of Quebec could not arbitrarily revoke a person’s liquor license for reasons unrelated to the purpose of the legislation in question.

Question 6

Roncarelli v. Duplessis Follow-up quesitons:
What did Justice Rand invoked in this case?

Answer 6

Justice Rand invoked the rule of law and common law rights, stating that “it is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling, which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute.

There is no such thing of absolute discretion. Discretion implies good faith in discharging an unchallengeable right irrelevant to the sale of liquor in a restaurant is beyond the discretion conferred. It was a gross abuse of power expressly intended to punish him for an act wholly irrelevant to the statute and it is against the rule of law. Here J Rand affirms what Bora Laskin called the judicial bill of rights.

Question 7

What is the Implied Bill of Rights?

Answer 7

The courts refer to the preamble of the BNA Act to imply that the state cannot encroach on certain fundamental rights. This is now the function of the Charter.

Question 8

Attorney General of Alberta v. Attorney General of Canada

Answer 8

The SC struck down Alberta legislation that interfered with the right of newspapers to report freely on the government’s economic policies. It was held that the Alberta legislature lacked the legislative authority to enact a law that struck at the very foundation of our parliamentary democracy.

Although freedom of expression and freedom of the press were not expressly protected by the constitution, the court found that the right of every citizen to criticize the government was an inherent element of Canada’s constitution and beyond the reach of provincial jurisdiction.

Question 9

Attorney General of Alberta v. Attorney General of Canada - Follow up question: What does Justice Cannon said regarding this case?

Answer 9

Democracy cannot be maintained without its foundation: free public opinion and free discussion throughout the nation of all matters affecting the State within the limits set by the criminal code and the common law. The province cannot interfere with a Canadian citizen’s fundamental right to express freely his untrammelled opinion about the government policies and discuss matters of public opinion. And so the press bill was held to be ultra vires of the provincial government.

Question 10

Switzman v Eibling (1957):

Answer 10

Switzman was a member of the Communist Party of Canada and wanted to use his property to hold meetings and distribute literature advocating for socialist and communist principles. However, a municipal bylaw prohibited the use of properties for political purposes, and Switzman was denied a permit to use his property for these activities. He challenged the bylaw in court, arguing that it violated his fundamental rights to freedom of expression and property ownership under the Canadian Bill of Rights.

The case went through several rounds of appeals before it was finally heard by the Supreme Court of Canada in 1957. The court ultimately ruled in favor of Switzman, finding that the municipal bylaw was unconstitutional and violated his rights to freedom of expression and property ownership. The court’s decision was based on the argument that the bylaw was overly broad and arbitrary, and that it failed to serve a pressing and substantial public interest.

The decision in Switzman v. Elbling and A.G. of Quebec was a significant victory for civil liberties in Canada, and it helped to establish the constitutional protection of fundamental rights in Canadian law. The case set a precedent for future cases involving government restrictions on freedom of expression and property ownership, and it helped to shape the development of Canadian constitutional law in the years to come.

The case also had broader implications for Canadian society, as it highlighted the tension between individual rights and the collective interests of society. The decision in Switzman v. Elbling and A.G. of Quebec reaffirmed the importance of protecting individual rights, even in the face of public opposition or political pressure.

Overall, Switzman v. Elbling and A.G. of Quebec was a landmark case in Canadian legal history that helped to establish the constitutional protection of fundamental rights. The decision in this case has had lasting effects on Canadian society and has helped to shape the development of Canadian constitutional law in the years since it was handed down.

SC underscored the inherent rights of citizens to invalidate the provincial Padlock Act, which made it illegal for anyone to make use of a house for the propagation of communism .

Question 11

Switzman v Eibling - Follow up Question:

What did Judge Rand said regarding this case

Answer 11

Judge Rand appealed to the fundamental rights of citizens in a democracy in finding the law colorable and to be beyond the powers of the provincial legislature.

In his opinion, Rand emphasized the importance of protecting individual rights and freedoms, even in cases where they come into conflict with the interests of the broader community.

Ultimately, Rand’s opinion in Switzman v. Elbling and A.G. of Quebec helped to establish the constitutional protection of fundamental rights in Canadian law. His emphasis on the importance of individual rights and freedoms has had a lasting impact on Canadian society and has helped to shape the development of Canadian constitutional law in the years since the case was decided.

Question 12

what is Canadian Bill of Rights (1960):

Answer 12

An ordinary Act of Parliament was passed and declared a list of civil rights to be fundamental and provided that all laws should ‘be so construed and applied so as not to abrogate abridge or infringe any of the rights or freedoms so declared. The list included rights and freedoms that are quite similar to those in the Charter, but also contains some rights that are not included in the Charter.

It’s important to note that the Canadian Bill of Rights is not the same thing as the Canadian Charter of Rights and Freedoms, which was created in 1982. While the Canadian Bill of Rights is still an important document, the Canadian Charter of Rights and Freedoms has more legal weight and is used more often in Canadian courts.

Question 13

What are the differences between the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms?

Answer 13

1. Legal Status: The Canadian Bill of Rights is a federal statute, which means that it is a law passed by the federal government. The Canadian Charter of Rights and Freedoms, on the other hand, is part of the Canadian Constitution, which is the highest law in Canada.
2. Scope: The Canadian Bill of Rights applies only to federal laws and the actions of the federal government. The Canadian Charter of Rights and Freedoms, on the other hand, applies to all levels of government - federal, provincial, and territorial - as well as to all individuals and organizations in Canada.
3. Rights and Freedoms: While there is some overlap between the rights and freedoms protected by the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms, the Canadian Charter includes additional rights and freedoms, such as the right to equality and the right to multiculturalism.
4. Enforcement: The Canadian Bill of Rights does not include a mechanism for enforcement, which means that individuals cannot take the federal government to court for violating their rights under the Bill of Rights. The Canadian Charter of Rights and Freedoms, on the other hand, includes a provision that allows individuals to challenge government actions in court if they believe their Charter rights have been violated.

Question 14

Section 33 of the Charter is

Answer 14

In other words, the notwithstanding clause allows the federal government, provincial or territorial governments to exempt a law from certain sections of the Charter for a limited period of time. The purpose of this provision is to allow governments to pass laws that they believe are in the public interest, even if those laws would otherwise be struck down by the courts as being unconstitutional.

It’s important to note that the notwithstanding clause can only be used for specific sections of the Charter, including sections 2 and 7 to 15, which are some of the fundamental rights and freedoms protected by the Charter, such as freedom of expression, freedom of religion, and the right to life, liberty, and security of the person.

Question 15

Individual Rights focus Charter

Answer 15

Critics of the Charter are afraid that the individual-rights focus Charter would undermine a more communitarian spirit expressed through legislative action. Moreover, there is a fear that powerful economic interests would be able to coopt the Charter framework to harm progressive state activity, undermining social justice.

Question 16

Liberal Justification of the Charter:

Answer 16

The Liberal justification of the Charter refers to the reasons why the Canadian government, led by Prime Minister Pierre Elliott Trudeau in the 1980s, decided to introduce the Canadian Charter of Rights and Freedoms as part of the Constitution.

The Liberal justification of the Charter is rooted in the belief that the Charter would help to protect the individual rights and freedoms of Canadians, particularly in the face of potential government abuses of power. The Charter was seen as a way to ensure that government decisions were fair and equitable, and that Canadians were protected from discrimination and other forms of harm.

At the heart of the Liberal justification of the Charter is the belief in individual autonomy and freedom. Trudeau and other Liberals believed that the government had a responsibility to protect the rights of individuals, particularly those who were marginalized or disadvantaged, and that the Charter was an important tool for achieving this goal.

The Liberal justification of the Charter also emphasized the need for a strong, centralized federal government that could protect the rights of Canadians across the country. The Charter was seen as a way to ensure that all Canadians had access to the same basic rights and freedoms, regardless of their province or territory.

Overall, the Liberal justification of the Charter is based on the belief that the government has a responsibility to protect the rights and freedoms of individuals, and that the Charter is an important tool for achieving this goal. The Charter was designed to ensure that Canadians are treated fairly and equitably, and that their rights and freedoms are protected from government abuses of power.

Question 17

The ‘Dialogue theory of judicial review’:

Answer 17

judicial review is situated in the context of a dialogue between the courts and the legislature. When a judicial decision from this perspective invalidates a law under the Charter, the legislatures have a chance to reformulate laws and so respond to the deficiency pointed out by the courts.

Question 18

What is judicial review?

Answer 18

Judicial review is the process by which courts, including the Supreme Court of Canada, review the decisions made by government bodies, such as legislatures, administrative tribunals, and executive branches, to ensure that they are consistent with the Constitution and the laws of the country.

When a court engages in judicial review, it will examine the decision made by the government body in question to determine whether it was made within the limits of its authority and whether it is consistent with the Constitution and the laws of the country. If the court finds that the decision was made outside of the government body’s authority or is inconsistent with the law, it can declare the decision to be null and void.

In Canada, the power of judicial review is enshrined in the Constitution, particularly in the Canadian Charter of Rights and Freedoms. This means that the courts have the power to strike down laws or government actions that violate the Charter or other laws of the land.

Overall, judicial review is an important tool for ensuring that the government acts within the limits of its authority and that the rights and freedoms of individuals are protected.

Question 19

Liberal Justification of the Charter on Judicial Review

Answer 19

Judicial review is necessary to protect the fundamental principles of democracy and that it could be justified because of the democratically enacted framers of the Constitution. The courts are a necessary institution to protect fundamental rights and guard against discrimination and marginalization. Therefore, judicial review should be seen as a power that enhances democracy.

Question 20

The Dialogue theory

Answer 20

According to the Dialogue theory, the courts should not be the only branch of government responsible for interpreting the law. Instead, the courts should engage in a dialogue with other branches of government, such as the legislature and the executive, in order to ensure that the law is being interpreted and applied in a way that is consistent with the values and goals of society as a whole.

In this model, the courts are seen as one part of a larger system of checks and balances, with each branch of government playing a role in ensuring that the rule of law is upheld. The courts are responsible for interpreting and applying the law, while the other branches of government are responsible for creating and implementing policies that reflect the values and goals of society.

The Dialogue theory of judicial review has been influential in shaping the way that judicial review is understood and practiced in many countries, including Canada. It emphasizes the importance of collaboration and cooperation between different branches of government, and suggests that a more collaborative approach to decision-making can lead to better outcomes for all members of society.

Question 21

What are the two step-process of interpretation and justification to give the language of the Charter concrete meaning?

Answer 21

The two-step process of interpretation and justification is a framework used by Canadian courts to give the language of the Charter of Rights and Freedoms concrete meaning. This process involves two distinct stages:

1. Interpretation: In the first step, the court must interpret the language of the Charter in order to determine what it means. This involves examining the words and phrases used in the Charter, as well as the context in which they are used, in order to determine the purpose and intent behind each section of the Charter. This step also involves considering any relevant legal principles, such as the rule of law and the principles of statutory interpretation.
2. Justification: In the second step, the court must justify any limitations that may be placed on Charter rights and freedoms. This involves weighing the rights and freedoms of individuals against the interests of society as a whole. The court must determine whether the limitation on rights is proportionate to the objective being pursued and whether the limitation is a reasonable and justifiable one in a free and democratic society.

The two-step process of interpretation and justification is used by Canadian courts to ensure that the language of the Charter is given a concrete and practical meaning. By examining the context and purpose of each section of the Charter and weighing the interests of individuals against the interests of society as a whole, courts are able to strike a balance between protecting individual rights and ensuring that society functions in a fair and equitable manner.

Question 22

Why did the Supreme Court of Canada deem the Charter interpretation a different unique kind of interpretation from the statutory interpretation?

Answer 22

In the first Charter case in 1984, Law Society of Upper Canada v. Skapinker, the judges indicated that they were prepared to develop a new yardstick of reconciliation between the individual and the community and their respective rights. Justice Estey rejected a narrow and technical interpretation. The Charter must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

The Supreme Court of Canada has recognized that interpreting the Charter of Rights and Freedoms requires a unique and different approach from the interpretation of other laws and statutes. The reason for this is that the Charter is a constitutional document that contains fundamental principles and rights that are of paramount importance to Canadian society. As such, it requires a unique approach to interpretation.

The interpretation of the Charter is unique in several ways. First, the Charter is a document that was deliberately written in broad and general terms in order to be flexible and adaptable over time. This means that the language of the Charter is often open to a range of interpretations, and courts must work to give it meaning in specific cases.

Second, the Charter represents a fundamental shift in the relationship between individuals and the state. It creates a new set of legal norms and values that are intended to protect the rights and freedoms of individuals, and that are meant to be interpreted and applied in a way that reflects these values.

Finally, the interpretation of the Charter requires a deep understanding of the social, political, and legal context in which it operates. This means that courts must consider the historical, social, and political factors that inform the Charter’s meaning, as well as the principles of constitutional interpretation.

Overall, the Supreme Court of Canada has recognized that interpreting the Charter of Rights and Freedoms is a unique and complex task that requires a careful and nuanced approach. By recognizing the unique nature of Charter interpretation, the court is better able to protect the fundamental rights and freedoms of Canadians, and to ensure that the Charter continues to be a cornerstone of Canadian society.

Question 23

Summary of Law Society of Upper Canada v. Skapinker

Answer 23

Law Society of Upper Canada v. Skapinker was a case heard by the Supreme Court of Canada in 1984. The case involved a challenge to the constitutionality of a rule established by the Law Society of Upper Canada, which required lawyers to retire at the age of 65.

The issue in the case was whether the mandatory retirement rule violated the equality rights guaranteed under section 15 of the Canadian Charter of Rights and Freedoms. The Supreme Court ultimately held that the rule did indeed violate section 15 of the Charter, as it discriminated against individuals on the basis of age.

In its decision, the Supreme Court established an important precedent regarding the interpretation of section 15 of the Charter. The Court held that in order to determine whether a law or policy violates section 15, it is necessary to engage in a two-part analysis. First, the claimant must establish that the law or policy creates a distinction based on an enumerated or analogous ground, such as age. Second, the claimant must show that the distinction has a discriminatory effect by perpetuating prejudice or stereotyping.

In the case of the mandatory retirement rule, the Supreme Court found that the rule created a distinction based on age, and that it had a discriminatory effect by perpetuating the stereotype that individuals over the age of 65 are no longer capable of being effective lawyers. As such, the rule was found to be a violation of section 15 of the Charter.

The Skapinker decision had significant implications for human rights and discrimination law in Canada, as it established an important framework for analyzing claims of discrimination under section 15 of the Charter. The decision also had practical implications for lawyers and other professionals, as it signaled the end of mandatory retirement policies in many professions in Canada.

Question 24

Hunter v. Southam Summary

Answer 24

Hunter v. Southam was a landmark case heard by the Supreme Court of Canada in 1984. The case involved a challenge to the constitutionality of a provision in the Combines Investigation Act that allowed government officials to conduct warrantless searches and seizures in the course of investigations into alleged antitrust violations.

The central issue in the case was whether the warrantless search and seizure provisions violated the protections against unreasonable search and seizure guaranteed under section 8 of the Canadian Charter of Rights and Freedoms. The Supreme Court ultimately held that the provisions did indeed violate section 8 of the Charter, as they allowed for searches and seizures that were not authorized by a judicial warrant.

In its decision, the Supreme Court established an important precedent regarding the interpretation of section 8 of the Charter. The Court held that in order for a search or seizure to be considered reasonable under section 8, it must be authorized by a judicial warrant, except in limited circumstances where a warrantless search or seizure is necessary to prevent imminent harm or damage.

The Hunter v. Southam decision had significant implications for the interpretation of the Charter and the protection of individual rights in Canada. It established that the Charter must be interpreted in a broad and purposive manner, with a focus on protecting fundamental rights and freedoms. It also established the principle that the government must obtain judicial authorization before conducting searches and seizures in most circumstances, in order to ensure that individuals are protected against unreasonable intrusions into their privacy.

Overall, Hunter v. Southam was an important decision in the development of Canadian constitutional law, and it continues to be cited as a precedent in cases involving the interpretation of section 8 of the Charter.

Question 25

Chief Justice Dickson on Hunter v. Southam

Answer 25

In the case of Hunter v. Southam, Chief Justice Brian Dickson wrote a powerful dissenting opinion, arguing that the warrantless search and seizure provisions in the Combines Investigation Act did not violate section 8 of the Canadian Charter of Rights and Freedoms.

In his dissent, Chief Justice Dickson argued that the traditional common law rules regarding search and seizure, which required a warrant for all searches and seizures, did not adequately reflect the realities of modern law enforcement. He argued that in some cases, such as those involving complex white-collar crimes or organized crime, it may be necessary for law enforcement officials to conduct warrantless searches in order to gather evidence and prevent harm to the public.

Chief Justice Dickson also argued that the Charter should be interpreted in a way that balances individual rights and freedoms with the broader interests of society. He suggested that in some cases, the interests of society as a whole may justify certain intrusions into individual privacy, even in the absence of a warrant.

While Chief Justice Dickson’s views did not ultimately prevail in the case, his dissenting opinion had a significant impact on the development of Canadian constitutional law. His argument for a more flexible and contextual approach to search and seizure law has continued to be influential, and has helped to shape the way that Canadian courts interpret and apply the Charter.

‘the task of expounding a Constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and repealed. A Constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of gov’t power… It must therefore be capable of growth and development over time to meet new social, political and historical realities often unimagined by the framers.’ So, Dickson says, it needs to be interpreted from a broad perspective – a broad and purposive analysis is needed which interprets ‘specific provisions of a constitutional document in the light of its larger objects’.

Question 26

The purposive approach of Interpreting the Charter

Answer 26

The purposive approach is the standard approach of constitutional interpretation. It draws on a range of sources and calls on the judge to reflect upon the purpose and rationale for the Charter right at issue in light of the overall structure of the Charter, our legal and political traditions, and history and of course the changing needs and demands of modern society.

CJ Dickson:

‘The [purposive] interpretation should be… a generous rather than legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection…[At the same time it must be realized that] the Charter was not enacted in a vacuum, and must therefore… be placed in its proper linguistic, philosophic and historical contexts.’ The Charter is not ‘an empty vessel to be filled with whatever meaning we might wish from time to time’. The starting point is always the text itself.

Question 27

Contextual Approach of Charter Interpretation

Answer 27

this approach will often be used to impose definitional limits on Charter rights and when a court assess whether a limit on a Charter right is reasonable under s.1. This approach generally looks into the larger social and political context to determine whether a limitation on a Charter right is justified and reasonable under s.1.

Question 28

Is International Law binding or persuasive during a Charter Interpretation?

Answer 28

Persuasive.

Question 29

The two components of Section 1 of the Charter

Answer 29

1) the requirement that all limits on rights be ‘prescribed by law,’ and 2) the requirement that limits be ‘reasonable’ and ‘demonstrably justified in a free and democratic society’.

Section 1 of the Canadian Charter of Rights and Freedoms outlines the circumstances under which the government may limit an individual’s Charter rights and freedoms. The section establishes two main components that must be satisfied in order for a limitation on Charter rights to be justifiable:

The limitation must be prescribed by law: This means that the government must have a clear and specific law or policy in place that establishes the limitation on Charter rights. The law or policy must be accessible, clear, and precise, and must be enforced consistently.

The limitation must be demonstrably justified in a free and democratic society: This means that the government must demonstrate that the limitation on Charter rights is necessary in order to achieve a pressing and substantial objective. The limitation must also be proportional to the objective being pursued, meaning that the benefits of the limitation must outweigh its negative effects. In addition, the government must show that the limitation is consistent with the fundamental values of a free and democratic society, such as equality, human dignity, and the rule of law.

The two components of section 1 of the Charter work together to ensure that any limitation on Charter rights is carefully justified and balanced against the interests of a free and democratic society. The section is designed to ensure that the government cannot arbitrarily limit individual rights and freedoms, but must provide a clear and compelling justification for any such limitations.

Question 30

Sources of Charter Interpretation

Answer 30

1. Text of the Charter
2. Parlmentary debates
3. International law.

Question 31

Regarding “Prescired by law requirement” as one of the components of Section 1, there are two components that relate to the rule of law. What are they?

Answer 31

1. Is the limit on the right authorized by a law?
2. does the law have the required degree of precision.

Question 32

Greater Vancouver Transportation Authority v. Canadian Federation of Students

Answer 32

Greater Vancouver Transportation Authority v. Canadian Federation of Students is a 2009 case heard by the Supreme Court of Canada. The case involved a challenge to the constitutionality of a decision by the Greater Vancouver Transportation Authority (TransLink) to refuse an advertisement on its buses promoting an anti-poverty campaign by the Canadian Federation of Students.

The issue in the case was whether the decision by TransLink violated the freedom of expression guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms. The Supreme Court ultimately held that the decision did indeed violate section 2(b) of the Charter, as it was not a reasonable limit on the freedom of expression.

In its decision, the Supreme Court established an important precedent regarding the interpretation of section 2(b) of the Charter. The Court held that in order for a limit on freedom of expression to be reasonable, it must be supported by a pressing and substantial objective, and must be proportional to that objective. In addition, the Court held that the burden of justifying a limit on freedom of expression rests with the party seeking to restrict that freedom.

In the case of TransLink’s decision to refuse the anti-poverty campaign advertisement, the Supreme Court found that the decision was not a reasonable limit on the freedom of expression. The Court held that the decision was not supported by a pressing and substantial objective, and that it was not proportional to any objective that may have been pursued by TransLink. As such, the decision was found to be a violation of the freedom of expression guaranteed under the Charter.

The Greater Vancouver Transportation Authority v. Canadian Federation of Students decision had significant implications for freedom of expression and advertising law in Canada, as it established an important precedent for analyzing claims of restrictions on freedom of expression. It emphasized the importance of balancing individual rights and freedoms with the broader interests of society, and ensuring that any restrictions on freedom of expression are necessary and proportionate.

Question 33

Justice Deschamps on Greater Vancouver Case:

Answer 33

In Greater Vancouver Transportation Authority v. Canadian Federation of Students, Justice Deschamps put forward the requirements for a Section 1 analysis of a limitation on Charter rights and freedoms. The Section 1 analysis involves determining whether a limitation on Charter rights and freedoms is justified under specific circumstances.

Justice Deschamps stated that in order to satisfy the “prescribed by law” requirement in a Section 1 analysis, it must be determined whether the government entity was authorized to enact the impugned policies and whether the policies are binding rules of governing application. If so, the policies can be considered “law” for the purposes of Section 1.

At the second stage of the analysis, to find that the limit is “prescribed by law,” it must be determined whether the policies are sufficiently precise and accessible. This requires two aspects to be satisfied:

1)All official action must be authorized by law to preclude arbitrary action by government officials. This means that the law must provide clear and specific guidance on what actions are allowed and what actions are prohibited.

2) Citizens must have a reasonable opportunity to know what is prohibited so that they can act accordingly. This requires that the law is adequately accessible to the public and that the law is formulated with sufficient precision.
Overall, Justice Deschamps’ requirements emphasize the importance of clear and accessible laws that are binding and provide clear guidance on what actions are allowed and what actions are prohibited. These requirements help to ensure that limitations on Charter rights and freedoms are based on clear and specific laws, rather than arbitrary actions by government officials, and that individuals can understand and comply with their legal obligations.

Question 34

Elaborate on J Deschamps

Answer 34

where a policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is prescribed by law. Applying this to the case, the policies are administrative in nature and are not meant for internal use – they are rules that establish rights and therefore fall within the meaning of the word ‘law’ for the purposes of s.1.

Question 35

R v. Oakes

Answer 35

R. v. Oakes is a landmark case heard by the Supreme Court of Canada in 1986. The case involved a challenge to the constitutionality of section 8(2) of the Narcotic Control Act, which made possession of narcotics a criminal offense unless the accused could prove that they had a lawful excuse for possessing the substance.

The central issue in the case was whether section 8(2) of the Narcotic Control Act violated the presumption of innocence and the right to a fair trial guaranteed under section 11(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court ultimately held that the provision did indeed violate these Charter rights, as it placed an unfair burden on accused individuals to prove their innocence.

In its decision, the Supreme Court established an important precedent regarding the interpretation of section 1 of the Charter, which allows for reasonable limits on Charter rights and freedoms. The Court established a two-part test for determining whether a limitation on Charter rights is justifiable under section 1. The first part of the test involves determining whether the objective of the limitation is pressing and substantial. The second part of the test involves determining whether the limitation is proportional to the objective being pursued.

The Oakes decision had significant implications for the interpretation and application of the Charter in Canadian law. It established the importance of balancing individual rights and freedoms with the broader interests of society, and emphasized the need for any limitations on Charter rights to be justified by pressing and substantial objectives. It also established the two-part test for analyzing claims of limitations on Charter rights under section 1, which has been influential in subsequent Charter cases.

Question 36

The Oakes Test

Answer 36

The test is used to determine whether a law that limits a Charter right is constitutional, and is based on the principles of proportionality and justification.

The Oakes test involves two parts:

1. The objective of the law: The first part of the Oakes test requires the government to demonstrate that the objective of the law is pressing and substantial. This means that the government must show that the objective is important enough to justify a limitation on a Charter right.
2. The proportionality of the law: The second part of the Oakes test requires the government to demonstrate that the means chosen to achieve the objective are proportional to the objective. This means that the government must show that the limitation on the Charter right is necessary to achieve the objective, and that the benefits of the limitation outweigh its negative effects.

In order to determine whether a limitation on a Charter right is proportional to the objective, the Supreme Court has established a three-part analysis. This analysis involves determining whether:

1. The law is rationally connected to the objective;
2. The law impairs the Charter right as little as possible; and
3. The benefits of the law outweigh its negative effects.

Overall, the Oakes test is a flexible and adaptable framework that allows Canadian courts to carefully balance individual rights and freedoms with the broader interests of society. It ensures that any limitations on Charter rights are carefully justified and proportionate, and helps to ensure that the Charter remains a relevant and effective tool for protecting the rights and freedoms of all Canadians.

Question 37

The Law is rationally connected to the objective

Answer 37

rational connection between limit and objective. What needs to be considered here is whether there is a rational, non-arbitrary, non-capricious connection between the legislative objective and the law that is challenged. The courts here have also been deferential. In general, the rational-connection test has been used to prevent the justification of laws based on arbitrary or discriminatory assumptions. Nevertheless, rational connection between the limit of a Charter right and the legislative objective does not require scientific proof – it is on a case-by-case basis and does not always require empirical evidence.

Question 38

The law impairs the Charter right as little as possible

Answer 38

minimal impairment and it is the core element of the proportionality analysis. The question here is whether there was some other reasonable way for the legislature to satisfy the objective that would not impair the right or freedom at issue or that would have less impact on the right or freedom than does the law under review. A violation that is characterized as a total denial of the right in question will often be struck down on the basis that it does not minimally impair the right in question. There has been a trend away from a technical or mechanical approach to the requirement of minimal impairment towards a more contextual approach.

Question 39

The courts have been clear that the Charter applies only to gov’t action – only the state or those exercising state power have obligations under the Charter. The Charter does not apply to private actors nor to litigation between private parties which involves the application of common law. This is usually based on s32(1) of the charter which states:

Answer 39

This Charter applies
a) to the Parliament and gov’t of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest territories; and

b) to the legislature and gov’t of each province in respect of all matters within the authority of the legislature of each province.

Question 40

‘There are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of the activities. If the entity is found to be “government” either because of its very nature or because the gov’t exercises significant control over it, all of its activities will be subject to the Charter. If the entity is not itself a gov’t entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter.’

Answer 40

By Justice Deschamps in Greater Vancouver Case

Question 41

McKinney v. University of Guelph Case: what is the issue

Answer 41

Issue: whether university is a government agency in this case

In the McKinney v University of Guelph case, the question of whether the university was considered a government agency was important because it determined whether the university’s disciplinary system was subject to the Charter of Rights and Freedoms.

If the university was considered a government agency, then the Charter would apply and students would have the right to freedom of expression and other Charter protections. If, on the other hand, the university was considered a private organization, then the Charter would not apply and the university would have more freedom to regulate student behaviour.

The Supreme Court ultimately held that the University of Guelph was a government agency for the purposes of the Charter, as it was a publicly-funded institution with significant government control and oversight. As a result, the university’s disciplinary system was subject to the Charter, and the restrictions on freedom of expression in the system were found to be unconstitutional.

The importance of the government agency determination in the McKinney case highlights the broader issue of the relationship between public institutions and the Charter of Rights and Freedoms. The case helps to establish the limits of government control over public institutions and the scope of Charter protections for individuals, particularly in the context of public universities and other educational institutions.

Dissent: Justice La Forest: there mere fact that universities were creatures of statute is not sufficient to make its actions subject to the Charter. Universities have their own powers to negotiate contracts and collective agreements and without stator compulsion, it cannot be said that this constitutes gov’t action – as ‘universities were not in any way following the dictates of the gov’t’. It does not matter that they perform an important public service. That on its own is not enough for it to be considered gov’t action.

Question 42

Justice Wilson Sets out three tests to help identify the bodies that are subject to the Charter:

Answer 42

1) the ‘control’ test, which asks whether the legislative, executive, or administrative branch of gov’t exercises general control over the entity in question;

2) the ‘government function’ test, which asks whether the entity performs a traditional gov’t function;

3) the ‘statutory authority and public interest’ test, which asks whether the entity is one that acts pursuant to statutory authority specifically granted to it to enable it to further an objective that gov’t seeks to promote in the public interest.

Question 43

RWDSU v. Dolphine Delivery Ltd.

Answer 43

the issue here was whether the Charter applied to activities of a non-governmental private actor and to judge-made common law in the areas of tort, contract and property.

The Court based its decision on the interpretation of section 2(d) of the Charter, which protects the freedom of association, including the right to form and join associations for the purpose of advancing collective goals. The Court held that the right to collective bargaining and the right to organize for that purpose are fundamental aspects of the freedom of association.

The Court then analyzed the exclusion of agricultural workers from the Labour Relations Code, and found that it prevented these workers from effectively exercising their right to freedom of association. The Court noted that the exclusion made it difficult for agricultural workers to join together to improve their working conditions and wages, and prevented them from having a say in the terms of their employment.

The Court also considered the purpose of the exclusion, which was to preserve the unique characteristics of the agricultural sector. However, the Court found that the exclusion was not necessary to achieve this objective, and that it was not a proportionate response to the goal of protecting the interests of the agricultural sector.

Overall, the Court found that the exclusion of agricultural workers from the Labour Relations Code violated section 2(d) of the Charter, as it interfered with the fundamental right of workers to join together to pursue common goals, including the right to collective bargaining. The decision established an important precedent for the protection of labour rights and collective bargaining in Canada, and emphasized the importance of ensuring that all individuals have equal access to the protections of the Charter.

Question 44

Hill v. Church of Scientology

Answer 44

the SC considered the interaction of the Charter and the common law in a purely private context. J Cory explained that the common law needed to be interpreted in a manner consistent w Charter principles, but he insisted that that the Charter cannot apply in the same way to private activity as it does it does to government action. The courts will only make incremental changes to the common law, more far-reaching change should be left to the legislature.

Question 45

Retail, Wholesale and Department Store Union, Local 558 v. Pepsi:

Answer 45

In Retail, Wholesale and Department Store Union, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd [2002] 1 SCR 156, the SC returned to the issue of secondary picketing in Dolphin Delivery and overruled that decision by changing the common law rule of secondary picketing. The court stressed the importance of freedom of expression in the context of secondary picketing and ruled that the common law should be modified to allow all secondary picketing unless it involved tortious or criminal conduct. By expanding the powers of the courts to modify common law rules, the SC has lessened the impact of a strict public/private distinction drawn in Dolphin Delivery.

Question 46

Godbout v. Longueuil

Answer 46

This case established that municipalities are subject to the Charter and so the city of Longueuil’s residence policy violated s.7 of the Charter. LaForest emphasized that ‘where entities other than Parliament, the provincial legislatures or federal or provincial gov’ts…are in reality, ‘governmental’ in nature – as evidenced by such things as the degree of gov’t control exercised over them, or by the gov’t quality of the functions they perform—the cannot escape the scrutiny of the Charter’. Municipal councils are democratically elected by members of the general public and are accountable to their constituents. They have taxing power similar to a gov’t, and they are empowered to make laws and administer and enforce them. In that sense, they qualify as entities that exercise governmental functions and are subject to the Charter.

Question 47

Elridge v BC (AG) [1997] 3 SCR 624

Answer 47

The question was whether this violated s15 of the Charter or particularly whether the Charter applied to a hospital in this context. The court found that a private entity, such as a hospital in this case, may be subject to the Charter w respect to certain inherently governmental actions, as long as they act in furtherance of a specific governmental program or policy rather than being a part of an internal hospital management. Hospitals are only the means by which the legislature has chosen to deliver the program. There is a ‘direct and precisely defined connection’ between the specific government policy and the hospital’s impugned conduct. Its not simply a matter of internal hospital management. So, it is subject to the Charter.

Question 48

What is Section 15 of the Charter?

Answer 48

1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or mental or physical disability.

2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Subsection (1) means that the government is permitted to implement affirmative action programs or other measures aimed at addressing historical disadvantages faced by certain groups and promoting substantive equality. These measures are intended to promote equality of opportunity and level the playing field for disadvantaged groups, while also ensuring that they are not discriminated against on the basis of their personal characteristics.

However, such programs must be carefully designed and implemented to ensure that they do not themselves become a form of discrimination against other individuals or groups. The government must demonstrate that the measures are proportional to the objective of promoting equality, and that they do not unfairly advantage or disadvantage any particular group. The ultimate goal is to ensure that all individuals are treated fairly and equally under the law, regardless of their personal characteristics, while addressing historical disadvantages and promoting substantive equality.

The protection against discrimination provided by section 15 of the Charter applies to all areas of law, including criminal law, civil law, and administrative law. It also applies to government actions and policies, as well as to the actions of private individuals and organizations that perform public functions.

In order to be found to violate section 15 of the Charter, a law or policy must have a discriminatory effect on an individual or group, and this effect must be based on one of the enumerated grounds of discrimination listed in the section. The section also allows for affirmative action programs that seek to address historical disadvantages faced by certain groups and promote substantive equality.

Overall, section 15 of the Charter plays an important role in promoting equality and protecting against discrimination in Canadian society, and reflects a commitment to the principles of fairness, justice, and inclusivity.

Question 49

Formal Equality

Answer 49

Which only requires that similarly situated people to be treated the same.

Question 50

Substantive Equality

Answer 50

Which recognizes that positive action is needed in order to redress the inequalities experienced by disadvantaged and oppressed groups.

The SC has generally interpreted S. 15 from the perspective of substantive equality.

Ex. Bliss

Question 51

Bliss Decision

Answer 51

In Brooks, the Supreme Court was asked to consider whether the provisions of the Canada Labour Code that provided for reduced benefits to pregnant workers violated the equality rights guaranteed under Section 15 of the Canadian Charter of Rights and Freedoms.

The plaintiff in the case, Ms. Brooks, had worked for Canada Safeway Ltd. for several years and had become pregnant. When she went on maternity leave, she discovered that her employment insurance benefits were significantly reduced compared to what she would have received if she had been on sick leave. She argued that this reduction in benefits violated her right to equality under Section 15 of the Charter.

The Supreme Court ultimately agreed with Ms. Brooks and found that the provisions of the Canada Labour Code that provided for reduced benefits to pregnant workers violated Section 15 of the Charter. The Court held that the reduced benefits constituted discrimination based on sex and pregnancy, and that this discrimination was not justified under Section 1 of the Charter.

The Brooks decision was an important one for women’s rights in the workplace, as it established that pregnant workers are entitled to the same benefits and protections as other workers. The decision emphasized the importance of equality and non-discrimination in the workplace, and highlighted the need to ensure that laws and policies do not unfairly disadvantage pregnant or other vulnerable workers.

Question 52

Andrews v. Law Society of BC (First Equality Case)

Answer 52

Mr. Andrews, a Canadian citizen, challenged the constitutionality of a rule in the Law Society of British Columbia which required that only Canadian citizens could practice law in the province. He argued that the rule violated his rights under Section 15 of the Canadian Charter of Rights and Freedoms, which prohibits discrimination on the basis of citizenship.

The Supreme Court of Canada agreed with Mr. Andrews, ruling that the citizenship requirement violated his Section 15 rights. The Court held that citizenship was an analogous ground of discrimination under Section 15, and that the rule had a disproportionate impact on non-citizens, including permanent residents who had established strong connections to Canada.

The Court also rejected the Law Society’s argument that the citizenship requirement was a reasonable limit on Mr. Andrews’ rights under Section 1 of the Charter. The Court held that the requirement was not rationally connected to the objective of regulating the legal profession, and that it did not minimally impair Mr. Andrews’ Section 15 rights.

The decision in Andrews v. Law Society of British Columbia is significant because it established that citizenship is a protected ground under Section 15 of the Charter, and that laws or policies that discriminate on the basis of citizenship are subject to a high level of scrutiny under the Charter. The case also highlighted the importance of balancing individual rights and collective goals in the interpretation and application of the Charter.

Question 53

How to succeed in a S. 15 Claim?

Answer 53

a litigant would have to show that 1) there had been a denial of one of the four equality provisions in s.15—equality before or under the law or equal benefit or protection of the law—and

2) this differential treatment was discriminatory on the basis of a personal characteristic constituting an enumerated or analogous ground within section 15. So, the court took the ‘enumerated or analogous grounds’ approach, which it says most accords w the purposes of s.15 and the definition of discrimination.

Question 54

Enumerated or Analogous ground approach of Section 15.

Answer 54

The “enumerated or analogous grounds” approach in Section 15 of the Canadian Charter of Rights and Freedoms is a way of analyzing and identifying discrimination based on prohibited grounds.

The “enumerated grounds” refer to the four specific grounds of discrimination that are listed in Section 15 of the Charter: race, gender, religion, and disability. Discrimination based on any of these grounds is automatically considered to be a violation of Section 15.

The “analogous grounds” approach involves identifying other grounds of discrimination that may be similar to the enumerated grounds, even if they are not specifically listed in the Charter. In order to establish an analogous ground, a claimant must demonstrate that the ground in question is similar in nature to one of the enumerated grounds, and that it involves an immutable or deeply held characteristic that is integral to a person’s identity or dignity.

For example, the Supreme Court of Canada has recognized sexual orientation as an analogous ground of discrimination under Section 15, based on its similarity to the enumerated ground of gender. Similarly, the Court has recognized discrimination based on age, language, and citizenship status as analogous grounds, based on their similarity to the enumerated grounds of race and/or disability.

Overall, the enumerated or analogous grounds approach provides a flexible and inclusive framework for identifying and addressing discrimination based on a wide range of personal characteristics and identities.

Question 55

‘Once it is accepted that not all distinctions and differentiations created by law are discriminatory, then a role must be assigned to s.15(1) which goes beyond the mere recognition of a legal distinction. A complainant under s.15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory’.

Answer 55

This quote is from a legal decision about Section 15 of the Canadian Charter of Rights and Freedoms, which guarantees equality rights for all Canadians. It is saying that not all differences created by the law are necessarily discriminatory, meaning that not all differences are bad or unfair.

If someone wants to make a claim under Section 15, they have to show that they are not being treated equally under the law, or that the law is affecting them differently than others. But, in addition to that, they also have to show that the law is discriminatory in nature - meaning that it unfairly targets certain groups of people, or that it is creating an unjust outcome.

So, to sum it up: just because the law treats different people differently, it doesn’t mean it’s discriminatory. If someone wants to make a claim that the law is violating their equality rights, they have to show that the law is actually discriminatory and unjust.

Question 56

Justice McIntyre defined discrimination as:

Answer 56

a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed’.

Question 57

S.15 test (From Andrews)

Answer 57

1. Does the law create a distinction based on an enumerated or analogous ground?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

The second question has been reformulated to focus on the imposition of burdens or the denials of benefits in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.

The first step of the test is to determine whether the law creates a distinction based on an enumerated or analogous ground of discrimination. These grounds include factors such as race, gender, religion, and disability, as well as other characteristics that may be similar in nature.

The second step of the test is to determine whether the distinction created by the law creates a disadvantage by perpetuating prejudice or stereotyping. In more recent cases, this second step has been reformulated to focus on whether the law imposes burdens or denies benefits in a manner that reinforces, perpetuates, or exacerbates disadvantage for individuals or groups based on their personal characteristics.

Overall, the two-step test is a way of analyzing whether a law or policy violates the equality rights of individuals or groups under the Charter. It requires a careful examination of the impact of the law or policy on different groups, as well as an assessment of whether the law or policy is discriminatory in nature. By using this test, the courts can help to ensure that Canadian laws and policies are consistent with the principles of equality and non-discrimination that are enshrined in the Charter.

Question 58

Law v. Canada

Answer 58

In Law v Canada, the Supreme Court of Canada established a two-part test for determining whether a claim of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms is valid.

The first part of the test requires that there be discrimination on an enumerated or analogous ground. In this case, the widow was claiming that the Canada Pension Plan survivor benefits discriminated against her based on her age, which is an enumerated ground under Section 15.

The second part of the test requires that the discrimination be substantive, meaning that it violates human dignity. In this case, the Supreme Court held that the law did not violate the widow’s human dignity, because the law treated all individuals under the age of 45 equally, regardless of their gender, race, religion, or any other personal characteristic. The Court found that the distinction in the law was justified based on the government’s objective of ensuring that the pension plan was sustainable and provided benefits to those who were most in need.

Overall, the Law v Canada decision established that a claim of discrimination under Section 15 of the Charter requires both formal and substantive discrimination. Even if a law creates a formal distinction based on an enumerated or analogous ground, it may not be found to violate the Charter if it does not amount to substantive discrimination that violates human dignity.

Question 59

The concept of essential human dignity in Law v. Canada

Answer 59

The Court held that substantive discrimination involves the violation of an individual’s essential human dignity, which includes the ability to make choices and decisions about one’s life, as well as the ability to participate fully in society. The Court recognized that not all forms of differential treatment are necessarily discriminatory, but that discrimination occurs when individuals or groups are denied equal participation in society based on personal characteristics such as age, race, gender, religion, or disability.

Question 60

The 3-part test in Law v. Canada (abandoned the adrews test)

Answer 60

1. Does the impugned law a) draw a formal distinction between the claimant and others on the basis of one or more of personal characteristics or b) fail to take into account the claimant’s already disadvantaged position within Canadian society, resulting in substantively differential treatment between the claimants and others on the basis of one or more personal characteristics.
2. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
3. Does the differential treatment discriminate by imposing a burden upon or withholding a benefit from, the claimant in a manner that reflects the stereotypical application of presumed group or personal characteristics or that 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, equally deserving of concern, respect and consideration?

Question 61

Harm to human dignity is to be determined by examining these four contextual factors:

Answer 61

1) Pre-existing disadvantage;

2) correspondence between the grounds and the claimants’ actual needs, capacities and circumstances;

3) ameliorative purposes or effects; and

4) the nature and scope of the interest affected by the impugned law.

These factors were very important in establishing discrimination under s. 15 as the violation of a claimant’s human dignity needed to be established to lead to a successful s. 15 application. So, this aspect of the analysis was determinative in the case of law itself.

Question 62

The difference between the Andrews Test and Law test.

Answer 62

Andrews test and Law test are two different tests used by Canadian courts to determine whether a claim of discrimination is valid under Section 15 of the Canadian Charter of Rights and Freedoms.

The Andrews test was established in the landmark case of Andrews v. Law Society of British Columbia. It has two parts: the first part is to determine whether the law creates a distinction based on an enumerated or analogous ground of discrimination. The second part is to determine whether the distinction has a discriminatory impact, meaning that it perpetuates prejudice, stereotype, or disadvantage.

On the other hand, the Law test was established in Law v. Canada. It also has two parts: the first part is to determine whether the law creates a distinction based on an enumerated or analogous ground of discrimination. The second part is to determine whether the distinction amounts to substantive discrimination, meaning that it violates essential human dignity.

The difference between the two tests is in the second part. The Andrews test focuses on the impact of the distinction on the affected group, while the Law test focuses on the violation of essential human dignity. The Law test requires a higher threshold of discrimination than the Andrews test, as it requires the violation of essential human dignity rather than just a discriminatory impact.

Overall, both tests are important in determining whether a law or policy violates the equality rights of individuals or groups under the Charter. They provide a framework for analyzing the impact of laws or policies on different groups, and for ensuring that Canadian laws and policies are consistent with the principles of equality and non-discrimination that are enshrined in the Charter.

Question 63

R v. Kapp (the case that returns to Adrews test)

Answer 63

In R. v. Kapp, the Supreme Court of Canada did not reject the Law test that had been established in Law v. Canada. However, the Court held that the Law test was not the only approach to determining whether a law violates Section 15 of the Charter. Instead, the Court held that the approach to determining whether a law violates Section 15 must be contextual, taking into account the purpose and effects of the law, as well as the historical and social context in which it is being applied.

In this case, the Court held that the Fisheries Act provision that allowed aboriginal peoples to fish for the purpose of maintaining a moderate livelihood did not violate Section 15 of the Charter. The Court adopted a contextual approach, focusing on the purpose and effects of the provision, and held that it was a form of affirmative action that was designed to promote substantive equality rather than just formal equality.

The Court also held that the Law test, which focuses on the violation of essential human dignity, was not appropriate in this case because it did not take into account the unique historical and social context of aboriginal peoples in Canada. Instead, the Court restored to the Andrews test, which focuses on the impact of the law on the affected group, and held that the provision did not have a discriminatory impact on non-aboriginal fishermen.

Overall, the decision in R. v. Kapp reaffirmed the importance of a contextual approach to determining whether a law violates Section 15 of the Charter, and highlighted the need to take into account the historical and social context in which the law is being applied. The Court recognized that different approaches may be appropriate in different cases, depending on the nature of the discrimination and the purpose and effects of the law.

Question 64

Withler v. Canada (AG)

Answer 64

Withler v Canada (AG) is a significant case in Canadian constitutional law that dealt with the interpretation of Section 15 of the Canadian Charter of Rights and Freedoms. The case concerned the allocation of supplementary benefits for members of the Canadian Forces whose spouses died. The benefits were allocated based on the age of the surviving spouse, which was challenged as discriminatory under Section 15 of the Charter.

The Supreme Court of Canada in this case confirmed the relevance of the four contextual factors from Andrews v. Law Society of British Columbia and added a fifth factor to the analysis. The fifth factor is the object of the measure alleged to be discriminatory in the context of the broader legislative scheme. The Court held that these factors need not be expressly canvassed in every case to determine whether a particular distinction is discrimination. Rather, the focus should be on the actual impact of the impugned law, taking account of social, political, economic and historical factors concerning the group.

The Court found that the reduced benefits did not fail to account for the claimants’ actual needs and circumstances when their situation was compared to that of the beneficiaries of the broader benefit of the scheme. The Court held that the allocation of benefits based on the age of the surviving spouse did not violate Section 15 of the Charter.

The addition of the fifth factor in the analysis was criticized by some as importing Section 1 considerations of balancing interests and social policy goals in contravention of the principle in Andrews that Section 15 and Section 1 analyses should be kept distinct. However, the Court in this case held that the fifth factor was relevant to the analysis of whether a particular distinction is discriminatory and did not amount to a blending of Section 15 and Section 1 analyses.

Overall, the decision in Withler v Canada (AG) reaffirmed the importance of applying a contextual and purposive approach to the interpretation of Section 15 of the Charter, and highlighted the need to consider the actual impact of laws or policies on disadvantaged or marginalized groups.

Question 65

The Fifth factor in Withler v. Canada

Answer 65

The fifth factor in Withler v Canada (AG) is a new consideration that the court added to the analysis of whether a law or policy is discriminatory under Section 15 of the Charter. This fifth factor looks at the overall purpose of the law or policy and how it fits into the broader legislative scheme. In other words, it asks whether the law or policy is part of a larger plan or goal that serves a legitimate purpose. This new factor is important because it helps to ensure that the court considers the impact of a law or policy within its broader context, and not just in isolation. This factor does not mean that the court is blending Section 15 and Section 1 analyses, but rather it is an additional consideration that helps to ensure a more thorough analysis of whether a particular distinction is discriminatory.

Question 66

Kahkewistahaw First Nation v Taypotat

Answer 66

Kahkewistahaw First Nation v Taypotat is a significant case that involved a claim of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms. The case concerned the application of the Indian Act and its impact on the right of First Nations individuals to participate in the political process.

The plaintiffs in the case were members of the Kahkewistahaw First Nation who had been removed from the band’s membership list under the Indian Act. The plaintiffs argued that this removal violated their Section 15 rights and amounted to discrimination on the basis of race, ancestry, and ethnicity.

The Supreme Court of Canada in this case applied the two-step analysis from Andrews v. Law Society of British Columbia to determine whether the Indian Act provisions violated Section 15 of the Charter. The Court held that the Indian Act provisions created a distinction based on an enumerated ground of discrimination (ancestry), and that this distinction had a discriminatory impact on the plaintiffs by excluding them from participating in the band’s political process.

The Court also considered whether the exclusion of the plaintiffs was justifiable under Section 1 of the Charter, which allows for reasonable limits on Charter rights if they can be demonstrably justified in a free and democratic society. The Court held that the Indian Act provisions were not justifiable under Section 1, as they did not have a pressing and substantial objective, and the exclusion of the plaintiffs did not minimally impair their Section 15 rights.

Overall, the decision in Kahkewistahaw First Nation v Taypotat reaffirmed the importance of Section 15 of the Charter in protecting individuals from discrimination on various enumerated or analogous grounds, and highlighted the need to apply a contextual and purposive approach to the interpretation of Section 15. The case also demonstrated the importance of considering the impact of laws or policies on disadvantaged or marginalized groups, and of promoting substantive equality rather than just formal equality.

Question 67

Fraser v. Canada (AG) 202 SCC 28

Answer 67

The claimants in this case are three retired members of the Royal Canadian Mounted Police (RCMP) who had taken maternity leave during their employment. They alleged that the RCMP’s pension plan discriminated against women who took maternity leave by reducing their pension benefits.

The RCMP’s pension plan provided for “pensionable service” to be credited to employees during the time they were on leave for certain reasons, such as sickness or disability. However, it did not provide for pensionable service to be credited during maternity leave.

The claimants alleged that this differential treatment between maternity leave and other forms of leave resulted in reduced pension benefits for women who took maternity leave, which disproportionately affected women and violated their rights under Section 15 of the Canadian Charter of Rights and Freedoms.

The Supreme Court of Canada agreed with the claimants and held that the differential treatment between maternity leave and other forms of leave in the pension plan was discriminatory and violated Section 15 of the Charter. The Court held that the differential treatment perpetuated the historical disadvantage experienced by women and reinforced gender-based stereotypes about the role of women in the workplace.

The Court also rejected the government’s argument that the differential treatment was justified under Section 1 of the Charter, finding that the government had not provided sufficient evidence to establish that the differential treatment was a reasonable and proportionate means of achieving a pressing and substantial objective.

Overall, the decision in Fraser v Canada (Attorney General), 2020 SCC 28 reaffirmed the importance of protecting the rights of women and addressing historical discrimination and stereotypes in the workplace.

Question 68

Justice Abella said in Fraser: to prove prima facie violation of s.15(1), a claimant must demonstrate that the impugned law or state action:

Answer 68

On its face or in its impact ,

1)creates a distinction based on enumerated or analogous grounds and

2) imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.

Question 69

What is adverse impact discrimination:

Answer 69

‘Adverse impact discrimination occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of enumerated or analogous ground…Instead of explicitly signaling out those who are protected groups for different treatment, the law indirectly places them at a disadvantage’. Adverse impact discrimination marks ‘a shift away from a fault-based conception of discrimination towards an effects-based model which critically examines systems, structures, and their impact on disadvantaged groups’.

Adverse impact discrimination, also known as indirect discrimination, occurs when a policy, practice, or requirement that appears to be neutral on its face has a disproportionately negative impact on a particular group of people who share a common characteristic, such as race, gender, or disability. This type of discrimination can occur even if there is no intent to discriminate, and can be unintentional or unconscious.

For example, an employer may have a policy that requires all job applicants to have a certain level of education. This policy may appear to be neutral, but if it has a disproportionately negative impact on members of a particular racial or ethnic group who are less likely to have access to educational opportunities, it may be considered to be indirectly discriminatory.

To establish a claim of adverse impact discrimination, a complainant must show that a policy or practice has a disproportionate negative impact on a particular group, and that the policy or practice is not justified by a legitimate and bona fide requirement of the job or the organization. In some cases, the organization may be required to make accommodations or modifications to the policy or practice in order to eliminate or reduce the discriminatory impact.

Justice Abella’s mention of systemic discrimination and the recognition of different impacts of policies and practices in the Fraser v. Canada case was related to the issue of adverse impact discrimination. The retired female RCMP officers in the case argued that the pension plan’s “notional” service provisions, which did not allow for the purchase of full pension benefits for time spent on maternity leave or part-time work, had a disproportionately negative impact on women who took time off for maternity leave or who worked part-time to care for children or family members. Justice Abella’s view was that the pension plan’s policy had a disproportionate impact on women, and that it perpetuated and reinforced gender-based stereotypes and discrimination that had historically disadvantaged women in the workforce. Therefore, her views on systemic discrimination and the recognition of different impacts of policies and practices were relevant to the issue of adverse impact discrimination that was at the heart of the case.

Question 70

The second step of the s.15 test (Abella using Andrews):

Answer 70

Does the law have the effect of reinforcing, perpetuating or exacerbating disadvantage. There is no rigid template of factors in this inquiry. The goal is to examine the impact of the harm caused to the affected group.

Question 71

Impossibility of rigid categorization

Answer 71

When Justice Abella mentions the “impossibility of rigid categorization” in the Fraser v. Canada case, she is referring to the fact that discrimination can take many different forms and can affect people in different ways, depending on their individual circumstances.

In other words, it is difficult to create fixed categories of discrimination that apply equally to all individuals and groups. Instead, Justice Abella suggests that a more flexible and nuanced approach is needed, one that takes into account the specific social, economic, and historical context in which discrimination occurs.

By recognizing the unique experiences and perspectives of different groups, and by adopting a more flexible and contextualized approach to assessing discrimination, Justice Abella’s approach seeks to promote greater understanding and inclusivity, while also holding organizations accountable for the impact of their policies and practices.

Question 72

Abella on Fraser v. Canada (An example of applying Andrews’ test)

Answer 72

Abella went on to apply this to the facts of the case. She stated that the Federal Court was wrong to rely on Ms Fraser’s choice to job share as grounds to dismiss her claim. The use of an RCMP member’s temporary reduction in working hours as a basis to impose less favorable pension consequences plainly has a disproportionate impact on women. She then referred to some statistical evidence and argued that the first part of s.15(1) is met. Moving to the second part of the test: whether this adverse impact reinforces, exacerbates or perpetuates disadvantage. There is no doubt that it does, she says. Moving to s.1, she states that the AG has not identified any pressing or substantial policy concern, purpose or principle that explains why job-sharers should not be granted full-time pension credit for their service. The s.15 claim therefore succeeds.

Question 73

Justices Brown and Rowe dissenting on Fraser v. Canada

Answer 73

They agreed with the majority’s analysis of adverse impact discrimination, but they disagreed on the scope of the disadvantage suffered by the claimants.

According to the dissenting opinion, the claimants’ disadvantage was not primarily due to their gender, but rather to their status as part-time workers. The pension plan at issue applied equally to both men and women, and the fact that the majority of job sharers were women was not sufficient to establish gender-based discrimination.

The dissenting justices also disagreed with the majority’s interpretation of the second step of the s.15 test, arguing that it was too broad and vague. They argued that the analysis should focus on the specific group that is allegedly disadvantaged and the specific disadvantage suffered by that group.

Overall, the dissenting justices believed that the claimants had failed to establish that they suffered discrimination on the basis of their gender and that the adverse impact of the pension plan was primarily due to other status as part-time workers.

Question 74

Justices Brown and Rowe argue that the majority are injecting positive duties into s.15. When Charter rights are fundamentally negative in nature and not to impose a positive obligation on legislatures where they attempt merely to ameliorate the effects of inequality.

Answer 74

When Justices Brown and Rowe argue that the majority is injecting positive duties into s.15, they mean that the majority is interpreting s.15 in a way that imposes a positive obligation on the government to take affirmative action to address inequality. This is in contrast to a negative obligation, which simply requires the government to refrain from engaging in discriminatory practices.

According to the dissenting justices, Charter rights are fundamentally negative in nature, meaning that they are meant to protect individuals from government actions that violate their rights. They argue that the majority’s interpretation of s.15 as requiring positive action by the government goes beyond the traditional understanding of Charter rights and imposes a burden on the government to take action to address inequality.

In other words, the dissenting justices believe that the majority’s interpretation of s.15 imposes a positive obligation on the government to take affirmative action to address inequality, rather than simply refraining from discriminatory practices. They argue that this goes beyond the scope of the Charter and undermines the principle that Charter rights are meant to protect individuals from government actions that violate their rights, rather than imposing obligations on the government to take action to address inequality.