Public Law Practice 2 PDF

⚖️ Public Law Tags Week 1 – Role of Government Big Ideas: Sources and exercises of state power and the constraints on that power Division of powers (Federal v Provinicial) Separation of powers (leg...

⚖️ Public Law Tags Week 1 – Role of Government Big Ideas: Sources and exercises of state power and the constraints on that power Division of powers (Federal v Provinicial) Separation of powers (legislative, executive, judicial) Rule of Law (all actors are equal under law, inlc. Gov) D Clément, “‘Rights without the Sword are but Mere Words’: The Limits of Canada’s Rights Revolution” in A History of Human Rights in Canada: Essential Issues (2009) Human Rights only exist if recognized and enforced by the state There was a gap between Human Rights rhetoric and actual enforcement Public Law 1  20th century Human Rights movement helped transform from system of oppression to a way of battling discrimination Need for Human Rights? Common law precedents can uphold discrimination Human Rights law provides protection against common law Wickham v Hong Shing Chinese Restaurant, 2018 HRTO Issue: Was Wickham subject to racial discrimination at the chinese restaurant? Decision: Yes, he was racially profiled Rule: Burden on applicant to show discrimination Test for OHR code violation: 1. Applicant is member of a group protected in the code 2. Applicant was subject to adverse treatment/disadvantage 3. Protected ground was a factor in the treatment Criteria for establishing #3: (Peel Law Association v Pieters) i. Prohibited grounds need only be a factor ii. No need to establish intent to discriminate iii. Prohibited grounds do not need to be the cause of defendant’s conduct iv. No direct evidence required, circumstantial is enough v. Racial stereotyping usually occurs from unconscious biases Remedial focus: Remedies are meant to recognize the harm to dignity and self-respect and to uphold the Code’s goal of ensuring equal treatment and respect. Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 Issue: Does the duty to consult (with Indigenous peoples) apply to the law-making process (i.e. legislative branch)? Public Law 2  Decision: Courts can’t mandate duty to consult because of the constitutional principles of separation of powers & parliamentary sovereignty. Rule: Courts cannot impose/enforce duties on the legislative branch that directly affect its legislative processes. An example of the interaction between the courts and the legislature, the role of the executive, and the mixed executive and legislative functions of the legislator Week 2 – Human Rights Law Big Ideas: Human rights law and institutions were intended to change the common-law approach to ‘discrimination as freedom’ Human rights law and institutions prioritize education and prevention, with enforcement only if necessary The fields of activity and the grounds covered by human rights law have expanded over time through legislative amendments and through interpretation Christie v York, (1940) SCR Issue: Does tavern owner have the right to deny service on the basis of race? Decision: Tavern owner has right to deny service due to freedom of contract Rule: Freedom of contract allows discrimination J Walker, “Race” in Rights and the Law in the Supreme Court of Canada (1997) Viola Desmond sat in white section of theatre Removed and charged with tax fraud (price difference between sections) Example of how discrimination is supported by the state Gilpin v Halifax Alehouse Ltd., 2013 NSHRC Public Law 3  Issue: Was the refusal of service and/or the police being called a discriminatory act? Decision: Refusal of service was not, but calling the police was a discriminatory act. Rule: Calling the police when not necessary is a discriminatory practice on the basis of race. Advancement from Christie v York, but still allowing discrimination Tarnopolsky, “The Iron Hand in the Velvet Glove…” (1968) 20th century in HR law → realized government intervention was necessary and rights should apply to everyone in society. 3 Major Phases in HR evolution: 1. 1944 Racial Discrimination Act: prohibitory provision acted as quasi- criminal 2. 1950s Fair Accomodation and Fair Employment Practices Act, tried to overcome previous issues of not helping Plf by adding inquiry/assessment of complaints 3. 1962 Ontario Human Rights Code to be administered by HRC improvement as it covered a range of fields and commission is made up of independent people Modern day human rights legislation is predicated on the theory that the actions/attitudes of prejudiced people can be changed through re-education, discussion, and the presentation of socio scientific materials that are used to challenge stereotypes about people. “Iron hand in velvet glove” Velvet glove = HR laws educate folks on discrimination Iron hand = if education fails, law clearly requires equality of access & opportunity C Patrias & R Frager, “‘This Is Our Country, These Are Our Rights’: Minorities and the Origins of Ontario’s Human Rights Campaigns” Public Law 4  (2001) Grassroots work by communities themselves helped bring about human rights system Jewish, African, and Japanese Canadians key plays in postwar HR campaign and helped develop the Fair Employment Practices Act Driven by WW2 horrors, US civil rights movement, wartime labour shortages Minority HR advocacy helped reform ideas about the nature of Canadian society & make Canadian institutions more responsive to Canada’s diversity Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (1993) Sunset argues that market pressures alone are insufficient to eliminate discrimination 1. Advantaged Party Costs: Companies that deal with minorities, do so at expense of advantaged groups 2. Stereotypes: Economic discrimination cause and reinforce stereotypes 3. Private Preferences: Discriminatory preferences adapt to existing injustices, such as marginalized groups being seen as less productive. 4. Market Norms: Markets often reflect the norms of dominant groups (white men), reinforcing inequality. Markets are far from a sufficient protection against social discrimination Howe & Johnson, Restraining Equality: Human Rights Commissions in Canada (2000) Laws should reshape societal norms and market practices to achieve substantive equality Ontario Human Rights Commission (1961) - first example of law trying to govern social relations between citizens, discrimination originates in norms/institutions not individuals Ontario Human Rights Code (1962) handles complaints, public education on human rights, advises the government on further code developments, and Public Law 5  promotes equality rights. Incrementalist strategy of human rights activists led to gradual legal advancements, including the consolidation of separate fair practices laws into the Human Rights Code. Between 60-90s prohibited grounds and scope expanded, became stronger and more proactive system Legislative expansion significantly broadened the scope of human rights protection. Discrimination grounds expanded to include age, disability, sexual orientation, criminal record, and more. The areas covered also extended to contracts, employment agencies, sexual harassment, hate literature, and accommodation for religious minorities and persons with disabilities. Administrative reforms strengthened commissions’ roles beyond handling complaints. They now tackled systemic discrimination, promoted affirmative action, and had powers to order broader remedies and penalties. Grant v Willcock (1990), ON HRT Issue: Did Willcock discriminate against Grant by refusing to sell his house to Grant after finding out he was black? Decision: Yes. Willcock failed to contract under equal terms (S.3 (right to contract on equal terms without discrimination because of race, etc) of the Ontario HRC. Rule: Freedom of contract is secondary to the right to contract on equal terms without discrimination. By choosing to advertise to the public, the property owner accepted (became subject to) societal values. OHRC trumps common law Janzen v Platy Enterprises Ltd., SCC Issue: Is sexual harassment in the workplace discrimination on the basis of sex, and thus prohibited by S.6(1) of the Manitoba Human Rights Act? Public Law 6  Decision: Yes, sexual harassment is a form of sex discrimination. Rule: Sexual harassment is a form of sex discrimination as it exploits economic and sexual power (inherently linked to the victim’s sex), impacting workplace equality and dignity. If membership of a class is a factor that leads to discrimination, then the discriminatory acts are considered based on their membership of that class. Sheppard, “Inclusive Equality” (2010) Legal approaches focus on individual accountability and moral blameworthiness of the harasser, not addressing systemic causes HR law in the case of sexual harassment does not address the root issues of inequality & is not particularly effective in remedying discrimination experienced by victims Note: The Nova Scotia Human Rights Commission: A Restorative Justice Approach 1st commission in Can to adopt restorative approach Move away from traditional legalistic processes. Starting in 2012, NSHR Commission has adopted: collaborative/restorative approach emphasizes reconciliation btw complainants & respondents facilitates faster resolution Disputes dealt w/ in Resolution conferences: date scheduled for ALL parties to convene & share perspectives participants help to create solutions for complainant agreement written that satisfies the main parties of the complaint if agreement ≠ reached, recommendation sent to Commissioner who dismisses/sends to board of inquiry Restorative justice is a recent progression of HR law & development. It appears to be more time/relationally efficient Public Law 7  Week 3- The Constitution & Its Principles Big Ideas: The constitution is both written and unwritten Unwritten principles underlie the constitution The constitutional principle of the rule of law requires that all state action is exercised in accordance with the law and that the law applies to all, including government The constitutional principle of federalism (division of powers) does not require any specific division of powers Other constitutional principles exist Constitutional principles cannot be used to strike down legislation Rule of Law Government action must be sourced & bound in law Horizontal Accountability: Accountability of one government entity to another (necessary for Rule of Law) Normative Order: Clear governing system of rules and shared expectations 3 main aspects of Rule of Law (as identified by Secession of Quebec (1998) Law is supreme over govt & private actions (one law for all) Creation & maintenance of order of positive laws is essential to maintain principle of Normative Order Every exercise of public power must be rooted in a legal rule Liston, “Governments in Miniature: The Rule of Law in the Administrative State” (2008) Rule of Law: Ensures that government power is derived from and constrained by law, preventing arbitrariness 3 Features of ROL: Public Law 8  Principle of Legality: Law must govern governmental actions 1. Principalism: government must be consistent so citizens are treated equally 2. Conventionalism: legality protects expectations, promotes certainty 3. Pragmatism: legality is not a condition, demands are enforced by public interest Law-making process: Legal creation must be conducted within specific institutional limits Political morality: Publicly endorsed principles of justice guiding state power and ensuring justice. Together, they prevent arbitrary use of power & regulate action between parties (private-state, state-state, & private-private) Forms of Arbitrariness: Procedural: Decisions without appropriate process or exceeding constitutional roles (violation of separation of powers or division of powers) Substantive: Biased, illogical, or unreasonable decisions lacking rational or moral grounding. 4 unwritten constitutional principles: Federalism Democracy Constitutionalism & Rule of Law Protection of Minorities Arbitrary uses of power are contrary to rule of law The unwritten principle of the rule of law constrains: principle of parliamentary sovereignty from its tendency to define democracy merely as a set of formal institutional arrangements Public Law 9  courts from unilaterally, arbitrarily, and anti-democratically substituting their views for Parliament’s in constitutional matters. Roncarelli v Duplessis, SCC Issue: Did Duplessis have the right to cancel Roncarelli’s liquor license? Decision: No, the cancellation was arbirtrary. Rule of Law applies to government actors. Rule: Exercise of state power is always subject to the rule of law even if a statute purports to grant absolute discretion. The rule of law is an unwritten constitutional principle Dyzenhaus, “The Deep Structure of Roncarelli v. Duplessis” (2004) Justice Rand distinguishes between two different views of Duplessis’ actions: 1. Formal Account of Rule of Law (Ultra Vires): Duplessis not entitled to give order to Archambault. This validates principle of validity (every official act is justified by law). Archambault has statutory power (based in legislation) so could cancel liquor license if decision was made alone. Formal Account focuses on WHO has authority Rand highlights that rule of law is meaningless in this account. 2. Functional Account of Rule of Law: Unwritten constitutional principle of Rule of Law applies to prevent arbitrariness Government actors must use statutory power within the limits of the rule of law Judges fill the role of “independent guardians of the rule of law” Functional Account focuses on WHY an authority is used Constitutional legacy: foundational in Canadian public law for asserting the judiciary's role as guardian of the rule of law and constitutional norms. Public Law 10  Substantive Rule of Law and Constitutionalism: Became a critical precedent for defining the "constitution of legality" and established that public officials must adhere to the rule of law and respect citizens' rights. Citizen-state relations: citizens retain fundamental rights that cannot be compromised by arbitrary govt actions. Extends beyond technical legal violations, to considerations of justice, fairness and respect for democratic values Federalism/ Division of Powers Federalism: The division of public power between two orders of government: Federal & Provincial (coordinate, not subordinate) Division of Powers: Designation that certain areas of government govern certain areas of society Set out in sections R & 92 of the Constitution Act 1867 P Hogg, Constitutional Law of Canada, 4th ed. (2005) Original federalism goals: prevent tyranny, QC independence, economic security Provinces’ powers are constitutionally guaranteed, and cannot be altered unilaterally by the federal government However, Federal law trumps provincial law when it is contradictory Federal govt can indirectly influence provincial govt’s through by exercising spending power Subsidiarity: Decisions should be made at the level of government closest to affected individuals. Expand this out…. R v Comeau Issue: Is NB Liquor Control Act 134(b) unconstitutional? Decision: NB Liquor Control Act is constitutional. Public Law 11  Rule: s. 121 of the Constitution Act, 1867, prohibits laws whose primary purpose is to restrict interprovincial trade. Laws with legitimate regulatory objectives within provincial authority, even if they have incidental effects on trade, are permissible. There is room for overlapping federal and provincial actions, purpose matters, courts will allow some things to be done for some purposes even though the same things could not be done for other purposes. Scowby v Glendinning, (1986) SCR Issue: Whether the detention of the plaintiffs by the RCMP was under fed or prov jurisdiction, and whether there Human Rights were infringed upon? Decision: When it is integrally bound up with a federal work,” it is federal jurisdiction. Rule: “Human rights” is not provincial or federal, jurisdiction depends on whether the underlying matter is provincial or federal. Reference re Secession of Quebec, (1998) SCR Issue: Does the Canadian constitution allow a province to secede? Decision: Only a constitutional amendment would allow a province to secede, but if there is a clear majority in the referendum than there is a duty to negotiate for all Canadian governments Rule: Quebec's unilateral secession would be unconstitutional without a clear expression of the will to secede and subsequent negotiations within the framework of Canadian constitutional law. Four “unwritten” constitutional principles apply here: Federalism: Provinces are on an equal level with the federal government Democracy: All about self-government, if the majority is in agreement, must negotiate Constitutionalism and the Rule of Law: All power is derived from the constitution and no gov can transgress it Protection of Minorities: Quebec has a right to protect language and culture Public Law 12  Toronto (City) v Ontario (Attorney General), 2021 SCC Issue: Whether change in Toronto's ward structure by Ontario was unconstitutional, specifically in terms of violating s.2(b) Charter rights and the unwritten constitutional principle of democracy? Decision: Changes in ward structure were constitutional. Rule: Unwritten principles cannot be used to strike down legislation Unwritten principles are used for interpretation and filling in gaps Week 4-Legislative Branch Big Ideas: The legislative branch of government debates and passes statutes Parliament has three parts: the House of Commons, the Senate, and the Queen (Governor General) Each legislature has two parts: the legislative assembly and the Queen (Lieutenant Governor) The frequency and duration of Parliament and the legislative assemblies is governed by the Canadian Charter of Rights and Freedoms Elections are not just about the outcome (Figueroa) Parliamentary privilege protects the ability of legislators to fulfill their functions (Vaid) Is parliamentary privilege legitimate? Is the reasoning in Figueroa convincing? Hogg, Constitutional Law of Canada, (2005), Legislative Process: Provincial: a. First reading b. Second reading (approval in principle) Public Law 13  c. Committee d. Third reading e. Royal Assent Each provincial legislature has two parts: the legislative assembly (MPP’s elected who debate and pass laws) + Queen (Lieutenant Governor; similar to GG but at provincial level and gives royal assent) Federal: 1. House of Commons (338 members, elected by Canadians) a. First reading b. Second reading (approval in principle) c. Committee d. Third reading 2. Senate (105 members, appointed by GG w/advice of PM) a. First reading b. Second reading (approval in principle) c. Committee d. Third reading 3. Royal Assent Structure of Federal Legislative Power: Legislative branch debates and passes statutes Legislative power in Canada is vested in Parliament: the Queen (Governor General), Senate, and House of Commons. Federal legislation requires all three elements, though the Cabinet is not directly part of the legislative process. 1. The House of Commons: Composed of elected members with the government holding power based on the majority’s support. Public Law 14  Cabinet control over legislation often leads to most proposed measures passing. 2. The Senate’s Role: Members are appointed by the Governor General (essentially by the Cabinet). Historically, the Senate has not posed significant obstructions to government measures, acknowledging its limited political mandate compared to the elected House. The Senate was intended to protect regional interests but has been weakened due to its appointive nature and federal government control over appointments. 3. Governor General's Role: The Governor General's role in legislative processes is ceremonial, providing royal assent to bills passed by both Houses. The 1930 Imperial Conference established that powers like withholding or reserving assent should not be exercised, reflecting a binding constitutional convention. Figueroa v Canada (Attorney General), 2003 SCC 37 Issue: Does the 50-candidate threshold under the Canada Elections Act infringe s.3 of the Charter by limiting meaningful participation in the electoral process, and if so, can this restriction be justified under s.1? (s.3 gives citizens the right to vote and run for office in the House of Commons or provincial legislative assemblies) Decision: Yes, 50-candidate threshold violated s.3 of the Charter because it limits meaningful participation in electoral process. Rule: s.3 of the Charter (right to vote and run for office) should be given a broad construction. s.3 extends beyond the mere right to vote and run for office; it encompasses meaningful participation in public political discourse. The requirement for political parties to nominate 50 candidates to gain registered status imposed undue barriers on smaller or regional parties; these parties enhance political discourse and citizen engagement even if they do Public Law 15  not offer a "government option" as they enable individuals/minority views to contribute meaningfully to democratic debate. Not Saved under S.1 Canada (House of Commons) v Vaid (2005) SCR Issue: Does parliamentary privilege include staff of members of parliament? Decision: No, parliamentary privilege is intended to protect activies integral to leglislating. Rule: Parliamentary privilege is confined to what is necessary for the proper functioning of Parliament. It does not shield all internal matters from legal scrutiny, particularly when such claims involve non-legislative staff and potential violations of human rights laws. The role of the courts is to ensure that a claim of privilege does not immunize from the ordinary law the consequences of conduct by Parliament or its officers and employees that exceeds the necessary scope of the category of privilege …. Courts are apt to look more closely at cases in which claims to privilege have an impact on persons outside the legislative assembly than at those which involve matters entirely internal to the legislature …. Week 5 - Executive Branch Big Ideas: Executive power is held by the Queen and is exercised on her behalf by the Governor General and the Lieutenant Governors The Governor General and the Lieutenant Governors exercise their power only on the advice of the Cabinet (with few exceptions) Responsible government: the Prime Minister (Premier) is the person who has the confidence of the House (assembly) The Prime Minister or Premier has unlimited power to select the cabinet (from among legislators) (Askin) Public Law 16  Although a majority government can basically pass whatever they want, they cannot publicly assume that their bills will be passed (Hansard) The executive is very large and includes the public service etc. Hogg, Constitutional Law of Canada, (2005) Governor General: Exec power held by queen, enacted by Governor General/Lieutenant Governor Governor General selects Prime Minister (leader of party w/ majority of seats in House of Commons) The only choice the Governor General can make without Prime Minister’s advice (as per convention) Prime Minister selects other ministers & advises Governor General to appoint/remove them The Cabinet: All ministers as a group = cabinet Supreme executive authority Decisions signed by Governal General (conventional obligation to sign) Prime Minister: Prime Minister (or premier) controls executive branch Prime Minister controls legislative branch too Majority govt. = Prime Minister’s full power to determine what legislation is enacted Thanks to strict party discipline Ministerial Responsibility: Ministers lead government departments and represent their departments in Parliament. Public Law 17  Civil servants, led by a politically neutral deputy minister, manage departmental operations but remain subordinate to the minister’s political direction. Ministers are accountable to Parliament for departmental actions, expected to explain conduct and, in serious cases of maladministration, may be expected to resign (though this is less common for non-personal failings). McAteer v Canada (Attorney General), 2014 ONCA 578 Issue: Does the requirement to swear allegiance to the Queen as part of the citizenship oath violate the Charter rights of freedom of expression (s. 2(b)), freedom of religion (s. 2(a)), or equality (s. 15)? If so, is it saved under s.1? Decision: No, it is not a violation. Rule: The oath to the Queen, as required by the Citizenship Act, symbolizes a commitment to Canada's form of government and does not violate Charter rights; it is harmonized with Canada's democratic constitutional framework. Conacher v Canada (Prime Minister), 2010 FCA Issue: Whether the Prime Minister’s advice to dissolve Parliament and set an election date violated s.56.1 of the Canada Elections Act and infringed the rights of Canadians to vote or run for office? Decision: No, Governor General has unfettered discretion to call an election? Rule: The Governor General’s powers are constitutionally preserved, and the Prime Minister’s role in advising does not violate Canadians’ constitutional rights. It is still “a clear expression of the will of Parliament” (and that will and expression matters). Expressive function of law Ontario Hansard, 22 January 1997 Issue: Did the government's advertising and pamphlet amount to a breach of privilege or contempt of the Legislature (undermines or obstructs the legislative process) by implying that legislation would pass without legislative approval? Public Law 18  Decision: No breach of privilege was found by the Speaker. Prima facie case of contempt was established regarding the ministry's pamphlet. Rule: Communications or advertisements that imply legislative outcomes are decided before the legislative process occurs can undermine parliamentary democracy and amount to contempt. The Speaker cited Speaker Fraser’s ruling from the Canadian House of Commons (1989) to clarify that while all breaches of privilege are contempts, not all contempts are breaches of privilege. Askin v. Law Society of British Columbia, 2013 BCCA Issue: Does the legislation governing the appointment of the Attorney General in British Columbia require the appointee to be a lawyer or meet certain legal qualifications? Rule: No, there is no requirement for the Attorney General to be a lawyer. Decision: The Crown's prerogative to appoint Executive Council members and assign portfolios is not limited by statute unless explicitly stated in legislation. The Attorney General's qualifications are not defined by statute and do not require the officeholder to be a lawyer. Crown Prerogative: Common law power vested in the crown Legislation that grants a power is also deemed to give any powers necessary to enable the person to exercise that power. Week 6 - Judicial Branch Big Ideas: Judicial impartiality is about having an “open mind”. The three core characteristics of judicial independence are security of tenure, financial security, and administrative independence The two “dimensions” of judicial independence are individual independence and institutional or collective independence (separation of powers) Public Law 19  Judicial independence is an unwritten constitutional principle and is also protected by section 11(d) of the Charter and sections 96-100 of the Constitution Act, 1867 Reasonable apprehension of bias test - whether a reasonable and right- minded person, knowing the relevant facts and circumstances, viewing the matter realistically and practically, and having thought the matter through, would have a reasonable apprehension of bias First/Lowest Level: Provincial/Territorial Courts Hear cases involving federal or provincial/territorial laws. Handle most criminal offences (except the most serious), family law matters, youth offenders (12-17), traffic violations, regulatory offences, and small claims. Some courts are specialized, such as Drug Treatment Courts. Deal with preliminary inquiries for serious criminal cases. Second Level: Provincial/Territorial Superior Courts Courts with "inherent jurisdiction," meaning they can hear cases in any area unless restricted by law. Handle the most serious criminal and civil cases. Hear appeals from lower provincial/territorial courts. Managed by provinces/territories, but federal government appoints judges. May have specialized divisions (e.g., family division). Federal Court of Canada (FCC) A national trial court at the same level as superior courts. Hears civil matters assigned by federal statutes (e.g., immigration, intellectual property, tax). Can review decisions from federal boards and tribunals. Includes specialized courts like the Tax Court of Canada and military courts. Public Law 20  Third Level: Provincial/Territorial Courts of Appeal and Federal Court of Appeal Hear appeals from superior courts and provincial/territorial courts. Federal Court of Appeal hears appeals from the Federal Court and Tax Court of Canada, and reviews federal tribunals. Decisions can be appealed to the Supreme Court of Canada. Fourth/Top Level: Supreme Court of Canada (SCC) The final court of appeal in Canada, with jurisdiction over all areas of law. Does not hold trials but hears appeals of public importance or national significance. Only hears cases with significant legal issues or national impact. Composed of nine justices, including the Chief Justice, with appointments made by the federal government. Some cases allow appeals as of right (e.g., criminal cases with a dissenting opinion). Arsenault Cameron v Prince Edward Island, SCC Concepts: Judicial Impartiality: judges must make decisions based solely on the law and the facts of the case, without any bias or preconceived notions (having an “open mind”) Apprehension of Bias: appearance or perception of impartiality, even if no actual bias exists. Recusal: removal of a judge from a case due to concerns about impartiality Judicial Independence: principle that judges must be free from influence or interference from external sources, particularly the executive branch of government. Public Law 21  Security of Tenure: Protection of judges from removal except for cause, ensuring their independence. Financial Security: Judges’ salaries and pensions must be protected to ensure judicial independence. Institutional Independence: The ability of the judiciary to function independently, including decisions on court operations and the assignment of judges. Issue: Whether Justice Bastarache's prior involvement in advocating for minority language education rights created a reasonable apprehension of bias, thus requiring his recusal from the case? Decision: No reasonable apprehension of bias shown Rule: Judicial impartiality requires a judge to have an open mind and to entertain all perspectives without bias, even if they bring personal experiences and sympathies to the bench. Recusal is not necessary unless there is evidence of a real, wrongful bias influencing the decision-making process. Judicial Independence: Expressed in [ss 96, 100 of Const 1867] & [s 11(d) of Charter]. Also expressed as unwritten constitutional principle in preamble to Constitution Act, 1867 Judicial independence is impartiality in: State of mind Relationship w/ executive resting on 3 conditions: Security & Tenure: Judges only removable for cause & that cause be subject to independent review Financial Security: Security of salary, remuneration, & pension Institutional Independence of Judicial Tribunals: Assignment of judges, sittings of the court, & court lists) MacKeigan v Hickman, 1989 SCR Public Law 22  Issue: Whether an investigative commission has the authority to compel judges to testify about their judicial decisions or the composition of the panel involved in a case? Decision: SCC ruled that investigative commission did not have the authority to compel the judges to testify about their reasons for their decisions or the composition of the panel. Rule: Judges are immune from being compelled to testify about the reasons behind their judicial decisions or the composition of the judicial panel that heard a case, as such actions would violate the principle of judicial independence. Compelled testimony is contrary to judicial independence s.11(d) of the Charter, although limited in scope, guarantees the independence of courts that exercise jurisdiction over offences, extending some protection to provincial courts. s.11(d) guarantees that anyone charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Reference re Remuneration of Judges, 1997 SCR Issue: Whether and to what extent the guarantee of judicial independence under s.11(d) of the Charter restricts the ability of provincial governments and legislatures to reduce judges' salaries? Decision: The Court ruled that judicial independence is a fundamental constitutional principle that protects the financial security of judges, and that reductions to their salaries must follow constitutional procedures. Rule: Judicial independence applies to all levels of the court and includes security of tenure, financial security, and administrative independence BUT belongs to and benefits the public, not the judges Financial security of judges is crucial to judicial independence and is not solely for the benefit of judges themselves but for the broader goal of preserving judicial impartiality. Public Law 23  The Court concluded that judicial independence is rooted in an unwritten constitutional principle, affirmed by the preamble to the Constitution Act, 1867, and not exclusively contained in the express provisions of the Constitution. Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC Issue: Can Parliament enact legislation to change eligibility criteria for SCC appointment? Decision: Parliament cannot unilaterally amend eligibility criteria for Supreme Court appointments; these features are constitutionally protected and can only be changed through constitutional amendment procedures. Rule: Changes affecting Quebec's representation on the bench are protected constitutional matters that require a constitutional amendment, as prescribed under s.41(d) of the Constitution Act, 1982. Parliament acting alone (simple legislative amendment) does not have the authority to modify eligibility rules concerning Quebec judges. This ensures that the Court’s essential features, including Quebec’s representation and the Court’s bijural nature, are protected. The supreme court’s composition (re 3 QB seats) is constitutionally protected & cannot be changed except through constitutional amendment procedures (that require unanimity btw all provinces + federal) Cosgrove v Canadian Judicial Council, 2007 Concepts: Judicial accountability: ensure judges are held responsible for their conduct and decisions, balancing judicial independence with oversight to maintain public trust in the judiciary Issue: Is s.63(1) of the Judges Act (Allows AG to request a formal inquiry into judicial conduct without a screening process), unconstitutional as it potentially undermines judicial independence? Decision: Federal Court of Appeal allowed the appeal, finding s.63(1) of the Judges Act constitutional. Public Law 24  Rule: s.63(1) of the Judges Act, which permits provincial attorneys general to request inquiries into judicial conduct without prior screening, does not violate judicial independence. It is a constitutionally valid means of ensuring public accountability and upholding the integrity of the judiciary, provided it does not unduly influence or impair judicial impartiality. Objective test for constitutionality of judicial independence: Whether a reasonable and right-minded person, knowing the relevant facts and circumstances, viewing the matter realistically and practically, and having thought the matter through, would have a reasonable apprehension that the statutory provision would impair a judge’s impartiality. Week 7 - Statutory Interpretation I Big Ideas: The modern principle (Driedger) – the text is important but is not the only consideration Rizzo & Rizzo Shoes Ltd. (Re) – statutory interpretation should take legislative intent into account & should not create absurd results (see also Robichaud, Schrenk) Can be disagreement over interpretation (Mossop) 3 Sources of Interpretation Law: 1. Interpretation Acts Every Canadian jurisdiction has an Interpretation Act containing rules applicable to statutes in general (sometimes called the Legislation Act) The legislature can issue instructions on how particular or general legislation is to be interpreted Definitions apply unless the context indicates otherwise Federal Act applies only to federal legislation; Provincial legislation applies to Provincial legislation Public Law 25  2. Interpretation Rules Definitions specify how particular words used are to be understood 1. exhaustive or non-exhaustive? a. “means” vs “includes” 2. Definitions are often added in regulations Application sections indicate the scope of the legislation in terms of space, time, persons affected and subject matter Preambles/purpose statements indicate the reasons for the new legislation Commencement and transitional provisions indicate when the legislation will come into force and how it will apply to situations in progress 3. Common Law Most important common law rule is “the modern principle” Modern Principle: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” Interpretation Act, RSNS 1989, c 235 Preamble is part of the statute s.11 Marginal notes are not part of the statute s.12 Shall is imperative and may is permissive s.9(3) Every provision is remedial s.9(5) Definitions that apply to every Act s.7 R Sullivan (1), ‘Driedger’s Modern Principle’ (2003) Three Dimensions of Interpretation under the Modern Principle: 1. Textual Meaning: Public Law 26  Texts take on an independent life once published, with meaning shaped by the reader’s linguistic competence, shared conventions, and personal context. Interpretation relies on "ordinary meaning" which considers the reader's preconceptions and societal language norms. 1. Ordinary meaning: as read by a competent reader; intended to use language in its ordinary grammatical sense 2. Presumed to be the meaning intended by Parliament, but this presumption can be rebutted 3. Personal experience, surrounding text and situation 4. Not a dictionary meaning 2. Legislative Intent: Interpretation considers the scheme and object of the Act and the intention of Parliament (“harmoniously w/Act”) Driedger breaks legislative intent into expressed, implied, presumed, and declared intentions. 3. Compliance with established Legal Norms: Entire context Interpretation should align with legal norms, including constitutional law, common law, and international legal standards. These norms help courts derive presumptions about legislative intent and the application of statutes. Statutory Interpretation: Applying the Modern Principle (example used here is the one w/Water Safety Training Act) 1. Grammatical and Ordinary Analysis Step 1.1: Examine the literal meaning of the text. Define key terms using their ordinary, grammatical sense. Public Law 27  Consider statutory definitions (e.g., the Nova Scotia Interpretation Act’s definition of “child”). Step 1.2: Identify ambiguity or uncertainty in the language. Highlight unclear terms or phrases (e.g., "similar lessons" and "maximum reimbursement"). 2. Contextual Analysis Step 2.1: Analyze the internal coherence of the statute. Ensure that all provisions align logically without creating contradictions. Step 2.2: Examine related sections and their practical application. E.g: consider how "similar lessons" in Section 1 connects with “basic swimming skills” mentioned in the preamble. Step 2.3: Consider societal changes and norms influencing the legislation E.g.: In the WSTA, drowning prevention and public safety reflect current societal priorities for child safety and accessible swimming education. 3. Understanding the Act’s Scheme Step 3.1: Identify the Act's primary object or intent—whether to remedy mischief, protect rights, or confer benefits. Use the preamble and legislative statements to understand the Act’s goals (e.g., ensuring basic swimming skills for public safety). Step 3.2: Examine how the provisions collectively work to achieve the Act’s purpose. Highlight any patterns, priorities, or mechanisms (e.g., financial reimbursement to remove barriers) 4. Legislative Intent Step 4.1: Consider the expressed intent (words of the statute) Refer to the preamble and official legislative statements for clarity. Step 4.2: Identify implied intent (where there are gaps or ambiguities) Public Law 28  Ask: What would the legislature likely have intended in this specific situation? Step 4.3: Acknowledge presumed intent (reflecting legal principles or public norms) Avoid interpretations leading to irrational or unintended outcomes (e.g., reimbursing non-swimming-related lessons). Step 4.3: Declared intent (said by members of Parliament) 5. Consequences Analysis Step 5.1: Explore practical implications of different interpretations: EX. We have adopted X, what is the consequences of that adoption? Do the consequences fit with the policy and intention of the act? Assess whether an interpretation would lead to logical, fair, and effective results. Step 5.2: Avoid outcomes that undermine the statute’s purpose or lead to absurd results. E.g.: reimbursing lessons unrelated to water safety might stretch government resources unnecessarily. Types of Judicial Approaches to Interpretation Textualists: Prioritize the literal words of the text as the primary indicator of intent. Intentionalists: Focus on inferred legislative intentions using context and extrinsic evidence. Normativists: Value extra-textual norms as essential to interpreting and assessing legislation. Pragmatists: Most judges adopt a pragmatic approach, considering text, intent, and norms flexibly based on the case context. Issues with the Plain Meaning Rule The "plain meaning" rule assumes texts have fixed meanings, disregarding interpretive context and subjective reader influence. Public Law 29  Modern linguistics suggests the "blueprint metaphor" for interpretation: texts guide readers to construct meaning but do not convey it exactly. Readers, including judges, bring personal experiences and knowledge to interpret texts, meaning interpretation is inherently subjective and influenced by individual context. Interpretation Challenges and Judicial Flexibility Judges consider factors such as the specificity of language, the audience’s expertise, and the importance of predictability and certainty. Legislative intent’s clarity and the reliability of its source impact its weight in judicial decisions. Judicial interpretations are also influenced by cultural and normative importance, balancing clear statutory meanings with considerations of justice and fairness. R Sullivan (2), ‘Statutory Interpretation in a New Nutshell’ (2003) Presumptions (presumptions can be displaced) Straightforward expression: legislature chooses the clearest, simplest and most direct way of stating its meaning Uniform expression: legislature chooses the same words and techniques to express the same meaning, and different words and techniques to address different meanings No tautology/redundancy: every word and feature of the text is there for a reason and plays a meaningful role in legislative scheme Internal coherence: all the provisions fit together logically and work together coherently to achieve the purposes of the legislation Legislature would have said “x”: had the legislature intended a particular interpretation, it would have written the legislation in a different way Rules: Public Law 30  Implied exclusion: if something is not mentioned in circumstances where one would expect it to be mentioned, it is impliedly excluded Associated words: meaning is affected by the other words or phrases with which it is linked in a sentence (general is informed by more specific things…if you said lions, tigers, and others…you would not consider frog) Limited class: a general term following a list may be read down to include only other things within the identifiable class Policy presumptions: (presumptions can be displaced) Strict construction: Penal, exceptions to individual rights, exceptions to general law Liberal construction: Remedial legislation, human rights legislation, legislation concerning Indigenous peoples Presumed compliance with Constitutional law, rule of law, international law, common law Challenges in applying traditional statutory interpretation rules as they are open-ended and inconsistent, leaving outcomes to judicial discretion rather than legal determinacy. While traditional rules no longer dictate outcomes, they still play a role in structuring interpretation and communication, providing a “checklist” of relevant considerations for interpreters. The rules, when used properly, aid in structuring arguments and justifying interpretations. Evolution in Legal Thinking: Modern jurists shifted towards broader conception of law: not only rules but also principles, values, and evolving practices. This shift allows statutory interpretation to be seen as a principle-governed activity rather than solely rule-driven. An interpretation may be considered absurd if it has any of the following effects: it creates irrational distinctions (treating like things differently or different things the same way) Public Law 31  it defeats the purpose of the legislation it leads to incoherence, contradiction or anomaly it undermines the efficient administration of justice it violates important norms of justice or fairness Structured Discretion for Judges/Interpreters: Judges retain discretion in interpretation, but it is structured by principles and requires analyzing 3 factors: textual meaning (language and drafting conventions of legislative texts), legislative purpose (legislature’s goals and intentions behind enacting legislation, or how various provisions interact within the legislative framework to achieve desired goals.), consequences, and norms. The focus on these factors is context-dependent, varying with legislation type, subject matter, language precision, and other considerations. Rizzo & Rizzo Shoes Ltd. (Re), SCC Issue: Does termination of employment due to the employer's bankruptcy trigger the right to termination and severance pay under the ESA? Decision: Interpreting the legislation using the modern principle showed they had right to termination and severance pay for any termination of employment other than quitting Rule: Statutory provisions, especially those with a protective purpose, must be interpreted in a fair, large, and liberal manner to achieve the intent of the legislature and avoid unreasonable outcomes. The termination of employment by an employer’s bankruptcy is considered involuntary termination, entitling employees to termination and severance pay under the ESA. Contextual Interpretation: Driedger’s “modern principle” of statutory interpretation ESA broadly and liberally, in line with its purpose of protecting employees (s.10 of the Interpretation Act also underscored that statutes are to be given a fair, large, and liberal construction to ensure they achieve their intended purpose.) Public Law 32  Legislative Intent: The SCC focused on the overall object and intent of the ESA—to protect employees' interests by ensuring reasonable notice and compensation upon termination. Avoidance of Absurdity: The Court rejected a strict interpretation that would lead to absurd results, such as treating employees differently based solely on the timing of their dismissal relative to a bankruptcy (an employee terminated the day before bankruptcy would get these payments) Legislative History: The SCC considered legislative amendments and statements by the Minister of Labour to conclude that the transitional provision introduced with the 1981 amendments indicated that severance obligations should extend to bankrupt employers, demonstrating an intent by the legislature to cover bankruptcy situations. Paragraph 27: “The consequences or effects which result from the Court of Appeal's interpretation of ss. 40 and 40a of the ESA are incompatible with both the object of the Act and with the object of the termination and severance pay provisions themselves. It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences... [A]n interpretation can be considered absurd if it: leads to ridiculous or frivolous consequences extremely unreasonable or inequitable illogical or incoherent incompatible with other provisions or with the object of the legislative enactment Robichaud v Canada (Treasury Board), SCC Issue: Is an employer liable for the discriminatory acts of its employees under the Canadian Human Rights Act? (sexual harassment is discrimination on the grounds of sex—but was it by the employer?) Decision: Employers can be held responsible for discriminatory acts of their employees under the Canadian Human Rights Act. Rule: Employers are liable under the Canadian Human Rights Act for discriminatory actions of their employees when these actions occur in the course Public Law 33  of employment. This liability is imposed to ensure that workplaces are free from discrimination, emphasizing a remedial and preventative approach rather than fault-finding. Remedial measures in HR legislation (like the CHRA) are concerned with impact not intent Quasi-constitutional and remedial: the Supreme Court of Canada described the CHRA as quasi-constitutional because of its role in protecting fundamental human rights. Statutory Interpretation: The Court emphasized the broad and purposive interpretation of the CHRA, which is on remedying harm, not on fault or intent of the employer. Purpose of the Act: The CHRA aims to ensure equality and eradicate discriminatory practices. It is remedial, focusing on providing relief to victims and preventing future occurrences. Employer Liability: The Court rejected strict reliance on traditional tort concepts like vicarious liability (since the CHRA's primary purpose is not to assign fault or punish discriminatory acts, but to eliminate discrimination and rectify its harmful effects…more remedial context). Instead, liability was based on the statutory purpose of the CHRA, making employers responsible for discriminatory practices by employees that are job-related or occur "in the course of employment." Remedial Effectiveness: Only employers can effectively implement remedies (not the individual supervisor), such as providing a non-discriminatory work environment and instituting measures to prevent harassment. The Act's remedial and educational objectives require such an interpretation. “It is clear to me that the remedial objectives of the Act would be stultified if the above remedies were not available as against the employer” (para 15) Canada (Attorney General) v Mossop, SCC Issue: Does “family status” as a protected ground include unmarried same-sex couples (before “sexual orientation” was added as a prohibited ground)? Public Law 34  Decision: Denial of bereavement leave did not constitute discrimination based on "family status" because sexual orientation was not a prohibited ground of discrimination under the CHRA at the time of the events. Rule: Interpretation of statutes are based on legislative intent and the recognition that changes in the law (such as the inclusion of sexual orientation) are matters for Parliament, not the judiciary, to determine. Chief Justice Lamer (Majority): Since sexual orientation was not included as a ground of discrimination in the CHRA, it was not permissible for the Court to extend the scope of the Act to include sexual orientation through judicial interpretation. The Court noted that any changes to the scope of the CHRA would need to be made by Parliament, not by the Court, unless there was a constitutional challenge. Justice L'Heureux-Dubé (dissenting): Justice L'Heureux-Dubé disagreed with the majority, arguing that the meaning of "family status" should evolve with societal changes and contemporary values. She contended that the broad purpose of human rights legislation, including the CHRA, was to protect individuals from discrimination and that the Tribunal had the discretion to interpret "family status" more broadly to include same-sex couples. Living Tree doctrine (a principle of constitutional interpretation that allows laws to evolve and adapt over time in response to changing societal values) applied to human rights law and that the meaning of "family status" should not be frozen in time. Canadian Human Rights Act (CHRA): s.3, which prohibits discrimination on the basis of various grounds, including "family status." At the time of the case, the Act did not explicitly include "sexual orientation." British Columbia Human Rights Tribunal v Schrenk, SCC Issue: Whether discriminatory harassment by a co-worker can fall within the scope of s.13(1)(b) of the BC Human Rights Code, which prohibits discrimination Public Law 35  "regarding employment”? Decision: SCC held that the scope of s. 13(1)(b) of the Code extends beyond discrimination by employers and superiors. It can include discriminatory conduct by any individual if there is a sufficient nexus to the employment context. Rule: Discrimination "regarding employment" under s. 13(1)(b) of the BC Human Rights Code encompasses all workplace discrimination with a sufficient connection to the employment context, even when perpetrated by individuals without formal authority over the complainant. The interpretation of human rights legislation must be broad and purposive to align with the aims of fostering dignity, equality, and protection from discrimination in the workplace. The Code’s broad purposes are to prevent discrimination and promote equality in the workplace. Limiting claims to employer-employee relationships would be inconsistent with these aims. Contextual Interpretation: A contextual reading suggests that workplace discrimination may involve individuals other than direct employers, including co-workers, if there is a strong enough connection to the workplace context. Protection Against Discrimination: The Code seeks to protect employees from any form of workplace discrimination, including from colleagues, regardless of their authority level, to provide broader redress options. Broad Remedial Scope: Remedies can be imposed directly on individual perpetrators of discrimination, beyond just employers, reflecting the Code's purpose to redress and deter discriminatory conduct. Week 8 - Statutory Interpretation II Big Ideas: This week focuses on the reasoning process used by courts in statutory interpretation – how the modern principle is applied Human rights legislation is “quasi-constitutional” Before/until human rights legislation is amended, the scope of grounds can be extended (or narrowed) through statutory interpretation Public Law 36  Despite the modern principle, decision-makers may take different approaches to statutory interpretation Canadian Human Rights Act (CHRA): s. 3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. s. 3(2) Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. s. 3(3) Where the ground of discrimination is refusal of a request to undergo a genetic test or to disclose, or authorize the disclosure of, the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics. s. 3.1 For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds. Langer: Bureaucracy, Human Rights and Public Accountability (2007) Concepts: Street-Level Bureaucrats (SLBs): The front line workers at tribunals HR commissions who sift through potential complainants’ potential complaints. Public Administration literature “seeks to understand public policy through its application in the routine daily encounters of public service workers.” Administrative law: A sturdy offshoot of the early legal realists who brought social science perspectives to their examination of how “law jobs” get done. Street-Level Bureaucrats as Policy Implementers Public Law 37  These frontline workers (like intake staff and investigators) are the "human face" of government agencies They don't just mechanically apply rules - they actively interpret and shape how policies are implemented through their daily decisions They serve as crucial mediators between the law/government and citizens The Reality of Frontline Work in Human Rights Agencies Staff face intense pressure dealing with emotional cases and high call volumes Staff must balance multiple constraints: Time limits (10 minutes per routine inquiry) Need to screen out non-viable complaints Requirement to provide fair treatment Organizational resource limitations Complex legal requirements Gap Between Public Expectations and Legal Reality There's often a disconnect between how the public understands "human rights violations" versus what qualifies legally The agency receives many more complaints than are actually actionable under the law Staff must constantly navigate between public expectations and legal requirements The Complex Role of Frontline Workers They must "construct" clients into "bureaucratically relevant attributes" while dealing with them as whole persons They exercise significant discretion while still being constrained by rules and accountability They handle difficult emotional situations while maintaining professional distance Public Law 38  They act as gatekeepers, deciding which cases move forward in the system Implementing human rights law is far more complex than just applying rules mechanically. The real work happens through the daily decisions and interactions of frontline staff who must balance multiple pressures: organizational constraints, legal requirements, public expectations, and human emotions. These workers play a crucial but often overlooked role in determining how rights and laws actually function in practice, serving as key interpreters and gatekeepers of the legal system. Challenges traditional legal scholarship by examining how laws work "from the bottom up" rather than just analyzing legislation and court decisions. It highlights the human element in bureaucratic systems and the challenges faced by those who must translate abstract rights into practical decisions. Howe & Johnson, Restraining Equality: Human Rights Commissions in Canada (2000) (excerpt) Historical Context / Court System Criticism (1950s-60s): Courts were criticized for being slow, expensive, and inaccessible to most citizens The legal system was particularly ineffective for discrimination victims who often came from marginalized groups Courts were viewed as socially conservative and resistant to progressive reform The criminal law framework made discrimination cases especially difficult to prove Rationale for Creating Human Rights Commissions (and administrative tribunals) Administrative Benefits: Lower costs for complainants as commissions would bear legal expenses Faster and simpler procedures compared to courts Public Law 39  Specialized staff with expertise in human rights More efficient case handling Procedural Advantages: Informal, practical approach to dispute resolution Focus on mediation and conciliation rather than adversarial proceedings Emphasis on education and transformation rather than punishment "Iron hand in velvet glove" approach prioritizing consensual solutions Legal Framework and Institutional Design Commissions were designed to be "institutionally ambidextrous”: Administrative bodies in early stages Semi-judicial during mediation/conciliation Fully legal/judicial for formal hearings when needed Had to maintain legal rigor and due process while pursuing administrative goals Created a formal hearing process as a last resort Key Tensions/Paradoxes Balance between informal dispute resolution and formal legal procedures Tension between rights enforcement and conciliation Some complainants wanted formal adjudication of their rights System favored settlement and compromise Commissions had authority to insist on settlement rather than proceeding to formal hearing Need to balance effective rights enforcement with fair, unbiased application of law Seneca College v Bhadauria, SCR Public Law 40  Issue: Whether this Court should affirm the recognition by the Ontario Court of Appeal of a new intentional tort. (i.e. tort of discrimination)? Decision: No, the human rights codes are comprehensive Rule: When a comprehensive statutory scheme exists for addressing a specific type of wrong (in this case, discrimination), courts should not create parallel common law remedies Creating a separate common law tort would undermine the legislative framework: Allowing people to sue in court for the same thing (or create a new legal claim) would interfere with this system and go against what the lawmakers intended when they designed the Code. Tellier-Cohen v. Canada (Treasury Board), 1982 (CHRT) Issue: Does discrimination based on pregnancy or childbirth constitute discrimination based on sex under the Canadian Human Rights Act? Decision: Yes - found by Canadian Human Rights Tribunal (CHRT) Rule: Discrimination on the basis of pregnancy constitutes discrimination on the basis of sex under the Canadian Human Rights Act (CHRA) because pregnancy is an inherent characteristic of being female. Denying leave for pregnancy differentiates adversely against women and contravenes the Act's prohibition against sex-based discrimination. The CHRT applied s.11 of the Interpretation Act, which calls for a “fair, large and liberal” interpretation to achieve the objectives of the legislation. The purpose of the CHRA is to eliminate discriminatory practices, which includes those arising from pregnancy or childbirth. Giggey v York Region District School Board, 2009 Issue: Does the York Region District School Board's reliance on the date of birth recorded on a birth certificate constitute discrimination based on "place of origin" under the Human Rights Code? Decision: No, allegations made by applicant are NOT discrimination on the basis of place of origin. Public Law 41  Rule: The case establishes that not all time-based or seemingly arbitrary distinctions constitute discrimination based on place of origin. To prove such discrimination, there must be a meaningful connection to stereotyping, social disadvantage, or presumed characteristics associated with a specific place of origin. Technical differences arising from time zones do not, in themselves, amount to discrimination. Quebec v Boisbriand (City), Concept: Quasi-Constitutional: Quasi-constitutional laws are not entrenched and can be amended or repealed like ordinary statutes, but they carry greater weight in judicial interpretation. While not part of a country's formal constitution, quasi-constitutional laws holds a special or elevated status above regular statutes due to its significant role in protecting fundamental rights, freedoms, or public values. These laws are interpreted broadly and given precedence over conflicting ordinary statutes unless explicitly overridden. Quasi-constitutional status of human rights legislation Issue: Does "handicap" under Quebec’s human rights laws include conditions that don’t currently cause any limitations? Decision: Handicap" should be interpreted broadly Discrimination can be based on perceived limitations, not just actual limitations The individuals were discriminated against and should be protected under the Charter Rule: Even if a condition isn’t currently causing a problem, it can still be a "handicap" if people treat the person unfairly because of it. Human rights laws are meant to stop discrimination, not just for those who have clear limitations but also for those unfairly judged based on their condition. The Quebec Charter doesn’t define "handicap," and dictionary definitions are unclear or overly broad. Public Law 42  Human rights laws aim to promote inclusion and prevent discrimination, so "handicap" must be interpreted broadly, not just literally or grammatically. Exam Prep suggestions Think about what you can cite to to support what you’re saying Exam Prep suggestions Think about what you can cite to to support what you’re saying Read the question carefully Answer every question or die Manage your time Follow the suggested times for the questions Don’t expect full citations Pinpoint if you can Judicial independence The more you support your answer w/ reference to the course materials, the better you’ll do Compare x case w/ y case, explain the reasoning and analysis etc. Spelling & grammar are not worth anything unless they impact his ability to read/understand the assignment If QA is 10 marks & QB is 20 marks, QA is should be half as long as QB. He plans to be in his office all day Thursday Fact patterns Primarily concerned w/ the analysis Show your work and how you get there Stat interpretation must quote the modern principle Essay question Try to separate paragraphs w/ headings Public Law 43  Don’t use point form unless you’re running out of time (makes it less clear what you’re saying) Public Law 44