Charter Framework PDF

Charter Framework LAWS2502A Ryan Koo [email protected] Re-cap Notwithstanding clause - Will Poilievre flip a 'kill switch' on Canada's Constitution? | About That (youtube.com) Application of the Charter But, the Charter may apply to (1) Entities which are e...

Charter Framework LAWS2502A Ryan Koo [email protected] Re-cap Notwithstanding clause - Will Poilievre flip a 'kill switch' on Canada's Constitution? | About That (youtube.com) Application of the Charter But, the Charter may apply to (1) Entities which are essentially governmental in nature (entities that are governmental in nature) What are indicia of government? (1) the governing body is democratically elected and accountable to its constituents (2) the body exercises governmental functions (e.g. law making and enforcing) (3) whether the body exercises powers conferred on it by the provincial legislatures Municipalities (Godbout, 1997 CanLII 335 (SCC) | Godbout v. Longueuil (City) | CanLII) But, the Charter may apply to (2) Entities which by virtue of the extent and degree of government control may be properly characterized as “government” (entities that are governmental by virtue of control) Factors considered: (a) whether the board is appointed and removable by the government (b) whether the government exercises regular control over the entity (directive powers; approval of by-laws, budgets) (c) whether the entity was established to implement government policy Douglas/kwantlen Faculty Assn. v. Douglas College, 3 SCR 570 But, the Charter may apply to (3) Entities exercising statutory powers Peter Hogg, in Constitutional Law of Canada, 5th ed: “Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.” But, the Charter may apply to (4) Non-governmental entities which engage in governmental acts/activities Factors considered: (a) whether the entity implements a specific statutory scheme or function (b) whether the entity acts in furtherance of a specific government policy or program Eldridge v. British Columbia (Attorney General), 3 SCR 624 Vriend v. Alberta, 1 SCR 493 Charter framework The Charter guarantees the rights and freedoms set out in it, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society  Step 2: Charter Step 3: Section 1 Step 1: Charter right is infringed test (aka “Oakes” claim is made (prima facie test) infringement) Claimant Defendant (aka governments) Costs of Charter litigation “In a nutshell, it is clear that in cases in which there is extensive legislative fact evidence, it is possible for the costs of a challenge to exceed $1,000,000, whereas in cases in which the challenge is advanced and supported largely by legal argument, and not evidence, the costs of the challenge will entirely depend upon legal fees. In many of these cases, the costs will be considerably less and will rarely exceed $50,000.” Source: Introduction - The Costs of Charter Litigation (justice.gc.ca) Oakes test Step 1 - The government that infringed the Charter right must explain the objective of its impugned law or conduct. The objective must be pressing and substantial. Step 2 - The government must demonstrate that the law or policy is rationally connected to the pressing and substantial objective. If the law or policy is arbitrary or serves no logical purpose, then it will not meet this standard. Step 3 - The government must demonstrate that the law or policy is minimally impairing of the Charter right. This means that the law must impair the Charter right as little as possible or is “within a range of reasonably supportable alternatives.” Step 4 - The government must demonstrate that the beneficial effects of the law or policy are not outweighed by its negative effects on the Charter right in question. This is generally known as the proportionality requirement. Application of Oakes test: COVID-related Charter Litigation Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219 Taylor v. Newfoundland and Labrador, 2020 NLSC 125 Discussion question #4: COVID-19 restrictions imposed by governments brought forth a plethora of legal challenges, on the grounds of alleged violations of the Charter. Do you agree or disagree with these challenges? Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219 Step 1: “The concession is wise as the objectives are clearly meant to protect public health and more specifically, they are meant to save lives, prevent serious illness and stop the exponential growth of the virus from overwhelming Manitoba’s hospitals and acute healthcare system. By any estimation, such objectives in the context of a pandemic are pressing and substantial” Step 2: “In the present case, I have no difficulty in concluding, based on logic, reason and a common sensical understanding of the evidence (see amongst others, the evidence of Dr. Brent Roussin, Dr. Jason Kindrachuk, Dr. Carla Loeppky) that the measures taken to limit gatherings, including in places of worship, are rationally connected to the goal of reducing the spread of COVID-19” Step 3: “Based on the evidence, I find that Manitoba’s approach is appropriately described as multi-faceted in that it focusses on the vulnerable, but at the same time, it focusses on locations and activities that pose the greatest risk for outbreaks and community transmission. In this way, the restrictions imposed are meant to keep the growth of community transmission of the virus within manageable levels so as to enable Manitoba’s healthcare system to cope and in order to ‘flatten the curve’” Step 4: “Based on the evidence, it is not difficult to conclude that the Public Health Orders do indeed achieve an important societal benefit: protecting the health and safety of others, especially the vulnerable. The present case is one of those cases where the obviously important freedom of religion and other Charter protections are, as Manitoba has contended, outweighed by the greater good of protecting public health by preventing the spread of a highly-contagious virus in the context of an unprecedented global pandemic” Taylor v. Newfoundland and Labrador, 2020 NLSC 125 Step 1: “The objective of the travel restriction was not to interfere with Ms. Taylor’s rights, but to protect those in Newfoundland and Labrador from illness and death arising from the importation and spread of COVID-19 by travelers. While pressing and substantial objectives are not limited to emergencies…the existence of COVID-19 as a public health emergency is beyond question. There can be no doubt that the goal of the travel restriction in reducing the importation of COVID-19 into Newfoundland and Labrador is a pressing and substantial objective” Step 2: “Based on the evidentiary record, and the uncontradicted evidence of Dr. Rahman, in particular, it is beyond argument that travel restriction is an effective means for reducing the spread of COVID-19 in Newfoundland and Labrador. The travel restriction is rationally connected to its objective” Step 3: “COVID-19 pandemic presents as a moving target and as a consequence the necessity of the travel restriction is regularly reassessed. Further, the travel restriction provides for an exemption process for considering those with extenuating circumstances, not previously contemplated. The travel request exemption team consults with the public health team and the CMOH to determine the disposition. Non- residents who are denied an exemption also have recourse to an appeal process, and within seven days may apply for a reconsideration by the CMOH. Ms. Taylor in fact did so, after which she was granted an exemption to travel to the province” Step 4: “While restrictions on personal travel may cause mental anguish to some, and so in the case of Ms. Taylor, the collective benefit to the population as a whole must prevail. COVID-19 is a virulent and potentially fatal disease. In the circumstances of this case Ms. Taylor’s Charter right to mobility must give way to the common good” Jacob v. Canada (Attorney General), 2024 ONCA 648 The $5,000 income threshold, and the exclusion of CPP-D from the calculation of that threshold, made it substantially more difficult for workers with a disability, who were active in the labour market, to replace lost employment income during the pandemic through the CERB and CRB programs, thereby exacerbating their disadvantage. Steps 1&2: “the purpose of the emergency legislation responding to the COVID-19 pandemic, designed to be easy to roll out and administer, meets the threshold of a "pressing and substantial" objective. I would also accept that the $5,000 income threshold and its method of calculation, which was selected as a proxy for a minimum level of recent labour market attachment to justify the temporary, emergency income replacement, are rationally connected to that objective.” Step 3: “While it may have been less intrusive to the rights of workers with disabilities to permit CPP-D recipients who were working to include their CPP-D benefits in the calculation of their income for purposes of the $5,000 income threshold, this was not the only reasonable way for Canada to respond to the challenges facing workers with disabilities…The suite of new and modified benefits brought in after the expiry of the CERB program also represented a reasonable and tailored response to the challenges of that time.” Step 4: “I would accept that the benefits of the impugned programs in making temporary income support available, quickly and efficiently, to the millions of workers affected by the pandemic, outweighed the negative financial impact for those unable to meet the income threshold.” Canadian Frontline Nurses et al. v. Canada, 2024 FC 42 Steps 1 & 2: “the government had a pressing and substantial objective when they enacted the measures: to clear out the blockades that had formed as part of the protest…and that there was a rational connection between freezing the accounts and the objective, to stop funding the blockades.” Step 3: “The scope of the Declaration and the measures could have been limited to Ontario which faced the most intransigent situation. And possibly Alberta, although the Coutts situation had been resolved when the Act was invoked. Elsewhere the authorities were able to use existing legislative tools such as the Criminal Code and provincial public safety statutes to remove blockades and prevent new ones from being established without the threat or use of serious violence from the protesters.” Step 3 continued: “And there is no evidence that the financial institutions would have refused to cooperate with the implementation of the measures if, for example, their account holders resided in Prince Edward Island or the Territories which had no illegal protests and had travelled to Ottawa to participate in the blockade…that the suspension of bank accounts and credit cards affected joint account holders and credit cards issued on the accounts to other family members and suggests that it was unavoidable. Indeed the Jost Applicants submitted evidence of that happening to one of them. Thus someone who had nothing to do with the protests could find themselves without the means to access necessaries for household and other family purposes while the accounts were suspended. There appears to have been no effort made to find a solution to that problem while the measures were in effect.” Charter remedies 52 (1) of the Constitution Act, 1982: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. 24 (1) of the Charter: Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Differences – respective roles of s. 52(1) and s. 24(1) s. 52(1) – remedy for unconstitutional legislation “Legislation” may include government policies where those policies are legislative in nature (Greater Vancouver Transportation Authority) Language is mandatory in nature s. 24(1) – personal remedy for unconstitutional government action Language is discretionary in nature R v. Power, 2024 SCC 26 Mr. Power was convicted of two indictable offences in 1996, sentenced to 8 months’ imprisonment, and served his time At the time of the conviction, “persons convicted of indictable offences could apply for a record suspension five years after their release” Parliament retrospectively changed the availability of criminal record suspensions for certain offenders by way of legislation enacted in 2010 and 2012 Mr. Power was suspended from his employment in 2011 after his employer received a tip about his criminal record, and was subsequently unable to obtain employment in his field because of his criminal record Mr. Power applied for a record suspension in 2013, which was denied because the impugned provisions retroactively rendered him permanently ineligible for a record suspension. The provisions were declared to be of no force and effect, as unjustifiably violating section 11(h) and (i) of the Charter, because they retrospectively increased an offender’s punishment R v. Power Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court? = Supreme Court of Canada ruled YES Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court? = Supreme Court of Canada ruled YES R v. Power “Sections 32(1) and 24 of the Charter, along with s. 52(1) of the Constitution Act, 1982, entrench the court’s role in holding the government to account for Charter violations” “Pursuant to s. 32(1), the federal and provincial legislatures are subject to Charter scrutiny” “A declaration of invalidity under s. 52(1), the first and most important remedy when dealing with unconstitutional legislation, allows courts to protect Charter rights while respecting the distinct role of the legislature in Canada’s constitutional order” “As for s. 24(1), it provides a personal remedy in the sense that it is specific to the violation of the applicant’s rights” R v. Power Canada asserted that the availability of a declaration of invalidity under s. 52(1) will always render damages inappropriate and unjust. Canada asserts that damages will never be appropriate for the enactment of legislation subsequently declared unconstitutional because the declaration of unconstitutionality will always be sufficient. Canada submits that judicial review of a decision under the invalid law may also be appropriate in certain cases. = Supreme Court of Canada disagreed. Canada submitted that Charter damages would interfere with Parliament’s law-making functions, impeding the state’s ability to govern effectively. = Supreme Court of Canada disagreed. Canada argueed that anything less than absolute immunity is inconsistent with three longstanding and foundational constitutional principles: parliamentary sovereignty, the separation of powers, and parliamentary privilege. = Supreme Court of Canada disagreed. R v. Power Canada is not entitled to absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights. Canada may be liable for Charter damages if the legislation is clearly unconstitutional (that Canada either knew that the law was clearly unconstitutional or was reckless or wilfully blind as to its unconstitutionality) or was in bad faith or an abuse of power. This is a high threshold. Remedies available under s. 52(1) Striking down – a finding of invalidity of the entire provision or law in question Used in cases where tailored remedy would be inappropriate (Big M Drug Mart; Morgantaler) Could include suspending the effect of a declaration of invalidity (Carter) Damages could also be awarded (Power) Remedies available under s. 52(1) Tailored remedies – “Reading in” used in cases where the court adds new words to the law to make it compliant with the Charter Typically used in cases where the law was found to be under-inclusive and have an exclusionary effect (Vriend) Tailored remedies – “Reading down” used in cases where the court interprets the impugned legislation in a sufficiently narrow way to bring it in line with the Charter Tailored remedies – “Severance” used in cases where the court finds only certain words of the impugned law to be unconstitutional Example – “Reading in” Vriend v. Alberta, 1 SCR 493 Delwin Vriend worked as a laboratory coordinator at a college in Edmonton, Alberta Throughout his employment, he received positive evaluations, salary increases and promotions for his work performance In 1990, he disclosed that he was homosexual. In early 1991, the college’s board of governors adopted a position statement on homosexuality Shortly thereafter, the president of the college requested his resignation Vriend wanted to make a complaint with the Alberta Human Rights Commission (Commission) that his employer had discriminated against him The Commission advised that he could not make a complaint under the Individual’s Rights Protection Act (IRPA), because it did not include sexual orientation Finding: Certain provisions of the IRPA infringe s. 15(1) of the Charter and the infringement is not justifiable under s. 1 Remedy: Read “sexual orientation” into the IRPA Example – “Reading down” R. v. APPULONAPPA, 2015 SCC 59 The four appellants were the captain and crew of the Ocean Lady, which was apprehended off the coast of Vancouver Island in October 2009. All the passengers, including the appellants, were Sri Lankan Tamils without proper documents attempting to seek refugee status in Canada. The appellants were charged under s. 117 of the Immigration and Refugee Protection Act (IRPA) 117(1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act. Consequences of conviction could include lengthy imprisonment and disqualification from consideration as a refugee The appellants argued that the provision infringes the right to life, liberty and security of the person under s. 7 of the Charter Example – “Reading down” – APPULONAPPA “The purpose of s. 117 is to criminalize the smuggling of people into Canada in the context of organized crime, and does not extend to permitting prosecution for simply assisting family or providing humanitarian or mutual aid to undocumented entrants to Canada” “Section 117 of the IRPA is overbroad and this overbreadth cannot be justified under s. 1 of the Charter” “The extent of the inconsistency that has been proven is the overbreadth of s. 117 in relation to three categories of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual aid amongst asylum-seekers, and (3) assistance to family entering without the required documents” “The preferable remedy is to read down s. 117 of the IRPA, as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members), to bring it in conformity with the Charter” Example – “Severance” Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 Whatcott distributed four flyers in Regina and Saskatoon on behalf of a religious group, known as the Christian Truth Activities. These flyers entitled Keep Homosexuality out of Saskatoon’s Public Schools! and Sodomites in our Public Schools contained geographic comments about same-sex couples and homosexuality Four individuals filed complaints with the Human Rights Commission, alleging that the flyers promoted hatred against individuals based on sexual orientation, which violated s. 14 of the Saskatchewan Human Rights Code The Commission found that the flyers constituted publications that contravened s. 14 because they exposed persons to hatred and ridicule on the basis of their sexual orientation Whatcott argued that s. 14 violated his rights to freedom of religion and expression guaranteed by s. 2(a) and (b) of the Charter Specifically, Whatcott argued that, to the extent that s. 14 precluded criticism of same-sex conduct or activity, it infringed his freedom of religion under s. 2(a) of the Charter Example – “Severance” – Whatcott The limitation imposed on freedom of religion by the prohibition in s. 14(1)(b) of the Code was demonstrably justified in a free and democratic society, under s. 1 of the Charter However, expression that “ridicules, belittles or otherwise affronts the dignity of” does not rise to the level of ardent and extreme feelings constituting hatred required to uphold the constitutionality of a prohibition of expression in human rights legislation. Accordingly, those words in s. 14(1)(b) of the Code are not rationally connected to the legislative purpose of addressing systemic discrimination of protected groups and they unjustifiably infringe freedom of expression. Consequently, they are constitutionally invalid and must be struck from s. 14(1)(b) Prohibition on publishing or displaying any representation “that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground” Remedies available under s. 24(1) Declaratory relief Consistent with recognition that there are “myriad options available to the government” to rectify constitutional deficiencies (Eldridge) Available in appropriate cases where it would be difficult to justify a directive remedy which would interfere with the prerogative powers of the executive Damages Available in appropriate cases where they would serve a “functional” purpose in remedying Charter breach Claimant must demonstrate that damages would further one or more of: 1) compensation – remedying any personal loss the claimant has suffered; 2) vindication – importance of upholding Charter rights; and/or 3) deterrence of further breaches by state actors Remedies available under s. 24(1) Mandamus Available in exceptional circumstances where only the executive is capable of remedying the unconstitutionality (PHS Community Services Society) Stay of proceedings Appropriate as a last resort in the “clearest of cases,” where an abuse of process either irremediably prejudices the integrity of the justice system or the accused's ability to make full answer and defence or obtain a fair trial (could be accompanied by seeking declarations of mistrial) Injunctive relief Power of courts to issue injunctions against the executive is “central to s. 24(1)” (Doucet- Boudreau at paragraph 70)