LAW2201A Notes PDF

Module 1: Introduction to the Legal System 2 Module 2: The Canadian Constitution 4 Module 3: The Charter Of Rights And Freedoms 5 Module 4: Criminal Law 7 Module 5: Criminal Procedure 9 Module 6: International Law 11...

Module 1: Introduction to the Legal System 2 Module 2: The Canadian Constitution 4 Module 3: The Charter Of Rights And Freedoms 5 Module 4: Criminal Law 7 Module 5: Criminal Procedure 9 Module 6: International Law 11 Module 7: Indigenous Peoples and the Law 14 Module 8: Canadian Human Rights 16 Module 1: Introduction to the Legal System What is Law? - The publicly prescribed rules that we must follow, failing which we may suffer some consequence - A reflection of common values of society - The process by which disputes are resolved - A moving target, the law is ever-evolving. Rules change and get amended Sources of Law: - Statutes - Broad and broadly applicable rules passed by legislatures - Highly diverse - Can be enacted in anticipation of future events - Regulations - Detailed rules defining, applying or further describing broad statutory statements - Passed by the governor-in-council - Flexible, easily hidden? - Regulation Example: - Ontario Employment Standards Act - Common Law / Case Law - ‘Rules’ laid down by the court - Based on decisions resolving particular disputes - Each decision determines the law as it applies to that dispute and (in theory) helps determine the law applicable to other similar matters - Based on the principle of ‘stare decisis’, the idea that like cases should be decided alike - Court decisions guide the determination of future similar matters by courts - Constitution - The supreme law of the country, to which all other laws must conform - Very broad statements of general principle that are given concrete application by the courts - ETC - E.g. International Law Law Makers: - Federal Parliament - Can make laws that apply across the country - Authorized to make laws respecting matters assigned to it by the Constitution Act, 1867 - Also technically responsible for the government of the territories - Provincial Legislatures - Laws only apply within the province - Authorized to make laws respecting matters assigned to it by the Constitution Act, 1867 - Municipal Councils - Laws only apply within the municipality - Authorized to make laws only respecting matters assigned to it by the provincial government - Aboriginal Governments - Judges - Not elected - appointed - Make law in the course of resolving specific disputes - Do not usually just make up law  - Guided by precedent, principle, statute and constitution - Independent and as impartial as possible Divisions of Law - Public vs. Private - Public: law relating to the relationship between the individual and society and the powers of various levels of government - E.g constitutional law, criminal law - Private: law relating to relationships between private individuals, corporations and other entities - E.g torts, contracts - Civil vs. Criminal - Private lawsuit between individuals etc vs. prosecution by the government to enforce a public law - Civil vs. Common Law - Civil law can also refer to the private law system operating in Quebec based on the civil code - Common Law = whole body of decisions rendered by courts in particular matters (private and public) - This applies to private law matters outside of Quebec - This applies to public law matters everywhere across the country - Substantive vs. Procedural - Generally, laws dictating what rights people have vs. laws dictating how rights can be enforced - Common law vs. equity - No longer any official division, but equitable doctrines continue to have importance - E.g Trusts Court Cases: - Hierarchical system in which the decisions of high courts are binding on lower courts - Both in the matter at hand and for future cases - Court cases almost always start in lower courts and, if appealed, move up to the higher courts - Different lower courts are assigned original jurisdiction over different matters - Different courts fulfill different functions - Fact-finding vs. Review - Adversarial System - Not a scientific inquiry - Decision to be based on evidence adduced by parties, who are presumed to be best able to advance their case - The judge is to be a neutral arbiter - Case Names: - Civil - Plaintiff -> Smith v. Jones R. v. Jones sets standards, regulates behaviours - 3Ps -> Persons (tort), Property, Promises (contracts) Natural law - objective moral principles discovered by natural reason Legal positivism - whatever the rulers say Legal realism - whatever the courts say All laws are rules but not all rules are laws - Law is the body of rules that can be enforced by the courts or other government agencies The Canadian Constitution 1. A legal Primer 2. The rule of law 3. Constitutionalism 4. A history of the constitution 5. Key constitutional Concepts 6. Federalism The Rule of Law 1. A primer on constitutions 2. The rule of law a. Rule of law b. Roncarelli v Duplessis c. Re Manitoba Language Rights d. Rule of law takeaway A Primer on Constitutions - Constitutional law is concerned with the rules governing the use of government power (public law) - Constitutions reflect the values that a country regards as important Rule of law takeaway - 2 things: - Law is supreme over government and private individuals - Rule of law requires the creation and maintenance of an actual order of positive laws which preserve and embody the more general principle of normative order Federalism  1. What is federalism? a. The constitutional structure of government b. Two levels: i. National (federal) ii. Regional / State (provincial) c. Each level of government is dependent on the other, and they derive their governing powers from the constitution 2. Federalism in the Canadian constitution a. Reasons for federalism b. Special features c. BNA Act d. Division of powers e. Judicial Interpretation 3. R v. Morgentaler Module 3: The Charter Of Rights And Freedoms The Canadian Charter of Rights and Freedoms 1. Introduction to the charter a. A Primer on Rights i. Protection of individual rights and freedoms ii. Human rights as inherent, universal, interrelated, interdependent, indivisible b. A history of human rights i. Common law = if statute takes away a civil liberty, courts cannot provide protection ii. Federal legislation = applied to federal laws provinces followed suit with human rights legislation c. The charter & what it does i. What does it protect? ii. Fundamental Freedoms 2. Interpreting the charter a. Who? - Everyone; every citizen; every individual 3. Limits on the charter a. Application i. To the Parliament and government of Canada in respect of all matters within the authority of parliament including all matters relating to the Yukon ii. To the legislature and government of each province in respect of all matters within the authority of the legislature of each province b. Interpretation c. Reasonable limits i. 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 ii. Oakes Test: iii. Pressing and substantial objective, Proportionality Test: iv. Rational Connection v. Minimally impairing vi. Proportionate effect  d. Notwithstanding clause i. Parliament of the legislature of a province may expressly declare in an act 4. Enforcing Charter Rights a. How does a charter case happen? i. Can arise in ordinary law enforcement: the argument that the law being enforced is unconstitutional. Can challenge a law that has been enacted b. Parties to a charter case i. Person making claim v (State) Attorney General ii. “Standing” = have to be affected by law 1. Serious question of constitutionality 2. The plaintiff directly affected or has a genuine interest in the law 3. No other means to bring it before a court c. Section 24: Enforcement i. 24. (1) 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 ii. (2) Where, in proceeding under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this charter. d. Remedies i. “Appropriate & just” ii. Injunctions -> judicial order to stop doing something iii. Damages -> money e. Case Example: Schachter v Canada i. Father of newborn denied benefits under the Unemployment Insurance Act (Applied to mothers and adoptive parents) 5. Freedom of Expression a. Rights review i. What does the charter protect? 1. S.2 - Fundamental Freedoms 2. S.3-5 - Democratic Rights 3. S.6 - Mobility Rights 4. S.7-14 - Legal rights 5. S.15 - Equality b. Section 2(b): Expression i. What does Expression mean? 1. Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. 6. Equality a. Rights Review i. Everyone 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, age or mental or physical disability b. Section 15: Equality Module 4: Criminal Law Criminal Law What is a Crime? - What makes an act bad enough to be considered a crime? - What distinguishes crimes from other offences? - E.g. impaired driving vs. careless driving - Or from civil wrongs? - E.g. Negligence Actus Reus Every crime can be broken down into constituent parts (called the elements of the offence) - Those elements can be grouped into two categories - Actus Reus - A wrongful deed, What you can’t do - Men's rea - A blameworthy mental state - What can’t be in your mind if you do it - Both are required to establish criminal liability Actus Reus - Up to three parts - Voluntariness - Criminal liability is only attached to physically voluntary acts - A voluntary act is an act that results when a person consciously controls her movement - Not the result of epilepsy, swarms of bees, etc. - Conduct (or ‘commission’) - To be guilty of a particular crime, you must commit the act(s) stipulated in the statutory provision creating the offence - Causation (not always required) - To be guilty of some crimes you must not just commit the act but also cause specified consequences - But when does someone cause a consequence? - Two questions - Factual causation - Factual causation is defined by the but-for test (winning) - Legal causation - Legal causation asks whether the accused’s act was a significant contributing cause Mens Rea Mens Rea refers to a culpable state of mind - Mens Rea does not encompass a single concept, but rather several - Intent - Some crimes require that the prohibited act be committed intentionally or wilfully - Knowledge - Sometimes the fault element is based on what the accused knew rather than what she intended  - Recklessness - Sometimes the fault element can be based on recklessness - Wilful blindness - Criminal negligence - Liability is sometimes imposed not because of what the accused intended, knew, or foresaw but because of what she should have known or foreseen - The objective of Mens Rea requires more than simple negligence Attempts - Pursuant to s.24 of the code, you can be guilty of a crime if - You intend to commit it but don’t complete it - As long as you proceed far enough to constitute an attempt to commit it Accessories - Multiple persons can be involved in the commission of a single offence, and their degree of participation may differ - A person can be criminally liable if she: - Actually commits the proscribed act - Does something that somehow enables another person to commit the proscribed act - Does something that encourages another person to commit the proscribed act Mistake - Liability can be negated if the accused makes a relevant mistake, but (usually) only if the mistake is of fact, not of law - A mistake of fact is the assertion by the accused that he mistakenly belived in a set of facts that, if true, would have rendered his actions legal - Such a mistake would negate Mens Rea - Generally, the mistake need only be honest, not reasonable Drunkenness - Intoxication itself is not a defence to crime - Intoxication is only a defence to the extent that contributes to a lack of mens rea Defences - Mistake and drunkenness are defences only in the sense that they negate Mens Rea - Other defences apply even when Mens Rea exists: - Necessity - Is the plea by the accused that she faced such perilous circumstances that she had no realistic choice but to break the law - Duress - In a duress case, a person is intentionally threatened with harm unless she commits a criminal offence - In a necessity case, a person is exposed to danger and decides to commit a crime in response - Provocation - Is only a partial defence, and only to the charge of murder - It has the effect of reducing liability for murder to liability for manslaughter - Self-defence  - It rests on the notion that we all have the right to protect ourselves from unlawful force applied by others - As long as we act (somewhat) reasonably Module 5: Criminal Procedure Lesson 1: Investigation, Prosecution and Defence Investigation: - Responsibility rests largely with the police - Generally, it is the police who decide whether to lay charges (based on reasonable grounds to believe the suspect has committed an offence) Prosecution: - Responsibility rests largely with the Crown Attorney’s offices - Crowns are quasi-judicial officers whose task is to achieve justice, not obtain a conviction - Must disclose the case to the accused in advance of trial Defence: - Normally performed by private lawyers paid personally by the accused or by legal aid - A narrower role, directed at protecting the interest of the client Lesson 2: Investigation, Detention and Search Arbitrary Detention - The police often detain people when investigating offences - Meaning they assume control over the movement of a person either physically or psychologically - This is usually before they have grounds to arrest the person - Little statutory regulation of this - Charter s.9 protects against arbitrary detentions Investigative Detention - Police have the power to detain for investigative purposes when - They have reasonable grounds to detain - And the detention is reasonably necessary in the circumstances: the overall decision to detain is a reasonable one Investigative Search - A power of search incidental to investigative detention exists, although searches are not permitted in all circumstances - The officer must reasonably believe that his or her own safety, or the safety of others, is at risk - The search must be confined in scope to an intrusion reasonably designed to locate weapons, not evidence - Police are allowed to perform at least a frisk search, and often more - The search must also be carried out in a reasonable manner Lesson 3: Search and Seizure - Police often search premises, places and people during investigations - When they find items or information of interest, they seize it for use in a prosecution - Searches and seizures can adversely impact on a person’s privacy and liberty - As a result, the law exhibits a preference for prior judicial authorization: warrants - There are, however, many exceptions: Warrants: - Many provisions in Criminal Code authorize searches and/or seizures, usually but not always under warrant - Warrants are issued by judicial officers based on reasonable grounds to believe that an offence has occurred and that evidence of the offence will be found at the location sought to be searched Lesson 4: Right to Counsel - Charter s.10(b) guarantees the right, on arrest or detention, to retain and instruct counsel What must the police do? - Informational duties - What the detainee must be told - Implementational duties - What must be done to enable the detainee to exercise her rights Duty to Facilitate - The police must facilitate access to counsel and provide a reasonable opportunity for the detainee to contact counsel Lesson 5: Right to Silence - Often the police will want to question a detainee - The police will sometimes exert considerable pressure on the detainee to speak and to incriminate herself - A detainee, however, has a constitutional right to choose whether or not to speak - A detainee also has the right to have the choice to remain silent not used against her - The fact of silence cannot be used against the accused at her trial on a charge arising out of the investigation - Not an absolute right, capable of being discharged only by waiver - The police can question a detainee after she has had the opportunity to speak to counsel - Asserting the right to silence (even repeatedly) does not necessarily mean the questioning must stop - The police can use “legitimate means of persuasion” to encourage the detainee to speak (Hebert) Lesson 6: Exclusion of Evidence - A person whose Charter rights are breached can apply to have evidence obtained in connection with the breach excluded from trial - The accused bears the burden of showing that her rights were breached and that exclusion from evidence is the appropriate remedy - A Charter breach will not necessarily result in the exclusion of any evidence - If fact, it often does not  - As a general rule, evidence is more likely to be excluded when - The police ignore established limitations on their powers - They significantly (and unlawfully) interfere with the privacy, dignity, autonomy or liberty of the accused - The resulting evidence is of questionable reliability - And vice-versa Module 6: International Law Lesson 1: Dualist Approach What is international law? - international law is defined as “the rules and principles of general application dealing with the conduct of states and of international organizations and their relations inter se, as well as with some of their relations with persons Treaties - Vienna Convention on the Law of Treaties, article 2: - (1) international agreement in writing; - (2) between states [or between a state and an international organization such as the UN]; - (3) formed with an intent to be bound; and - (4) governed by international law. Bilateral, Multilateral and Plurilateral Treaties - Bilateral treaties: those between Canada and one other country. - Multilateral treaties: those between three or more countries, generally developed under the auspices of international organizations. - Plurilateral treaties: generally entered into between one State and a group of States. Monism & Dualism - Monism: international law is immediately incorporated as part of a state’s domestic law – for example, in the case of a treaty, upon a state ratifying that treaty. - Dualism: there is a strict separation between the international and the domestic spheres of law. International law does not enter domestic law until it is changed into domestic law. Canada: Dualism Approach for Treaties - When Canada ratifies a treaty, Canadian law does not automatically change. - Canada must transform the treaty into domestic law - done through domestic legislation. - Once a treaty has been signed by Canada, the Minister of Foreign Affairs creates a memo explaining the treaty and what it means for Canada. - Minister provides the memo and a copy of the treaty to the House of Commons. - There is a waiting period of at least 21 sitting days during which Members of Parliament can debate the treaty. - After this, the government can introduce legislation to transform that treaty into Canadian law. If that legislation is adopted, then Canada can consider ratifying the treaty. Lesson 2: Monist Approach - Under the monist approach, there is no division between the international and domestic systems of law. - The legal system is an organic whole. There is a continuum between the international and domestic levels. - International law is automatically incorporated into domestic law without any need for domestic legislation. In other words, international law has direct legal effect within a domestic legal system and forms part of the domestic law of the state. - International law is domestic law, for monists What if there is a clash between international law and domestic law? - If domestic law is different from international law, then most monist systems have a rule in place: in the event of a conflict between the international and domestic laws, the international law prevails. - As you will see, Canada adopts a different approach from this traditional monist approach. Canada: Monist Approach for Customary International Law - For Canada, customary international law automatically forms a part of Canadian law. - In other words, customary international law enters Canadian domestic law directly, without the need for transformative legislation. - Customary international law has 2 elements: - sufficiently general and widespread state practice; and - evidence of opinio juris – a sense on the part of states that this state practice is mandatory. A psychological feeling by states that the practice is obligatory, and that, if usage is departed from, some sort of sanction will – or ought to – fall on the transgressor state. Lesson 3: The Interaction of Canadian and International Law Concerning Anti-Racism Canadian and international law concerning Anti-racism - the brutal slaying of George Floyd, a Black American man, at the hands of a White police officer in Minneapolis in May 2020, has provoked worldwide reflection about the persistence of serious systemic anti-Black and anti-Indigenous racism in the U.S., Canada, and many other countries. - the Floyd slaying and other similar incidents have also raised the issue of persistent disadvantages faced by Black, Indigenous, and other racialized minorities in Canada. International and Canadian Law - There are two approaches to the issue of integrating international law into domestic law: - monism – international law is immediately incorporated into domestic law. - Dualism—there is a clear separation between the international sphere of law and the domestic sphere of law. International law remains within its own sphere—outside of and distinct from domestic law until it is “transformed” by legislation. - Canada is: - dualist with respect to treaties - monist with respect to customary international law How can a Lawyer prove customary international law before Canadian courts? - Diplomatic correspondence - Government press statements - Summit reports  - Ministerial statements - Speeches before UN bodies - Government statements made in national legislatures - Government submissions to international and national tribunals or courts Slavery and Racial Discrimination Prohibited In Canada Today - International law prohibits slavery and racial discrimination: - Universal Declaration of Human Rights (1948) - International Covenant on Civil and Political Rights (1966) - International Covenant on Economic, Social and Cultural Rights (1966) - Convention on the Elimination of Racial Discrimination (1969) - Canadian law prohibits slavery and racial discrimination: - Canadian Charter of Rights and Freedoms, s. 15(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, age or mental or physical disability.” Mack v. Canada (2001) - the plaintiffs sought a public apology, damages and other remedies for money paid to the Government of Canada in respect of the so-called “Head Tax” levied on Chinese people entering Canada between 1885 and 1923. - the Head Tax and subsequent prohibition of Chinese entry into Canada (1923-47) had severe repercussions on Chinese immigrants to Canada and their families forced to remain in China. - The government of Canada sought to strike the pleadings in Mack v. Canada as disclosing no reasonable cause of action. - The Court made several observations: - the Charter cannot apply retroactively or retrospectively. The Charter’s equality provision, s. 15, was enacted only in 1985. The Court held that post-dated the repeal of the Chinese Immigration Act in 1947. - the plaintiffs claimed that they were being disadvantaged in comparison with the redress for violation of the human rights of Japanese Canadians because of their internment during the Second World War, a redress only concluded in 1988. - the Court dismissed this argument on the basis that the alleged discrimination flowed from historic legislation, not the Japanese-Canadian Redress Agreement. Apology & Reparations for Slavery in Canada? - In 2016 a Working Group of Experts on People of African Descent visited Canada and later reported on Canada’s record with respect to racism to the U.N. Human Rights Council in Geneva. The Working Group’s 2017 report to the Council recommended, among other measures, the following actions: - “84. The Government of Canada should: (a) issue an apology and consider providing reparations to African Canadians for enslavement and historical injustices” Module 7: Indigenous Peoples and the Law Lesson 1: Treaties Treaties and Treaty Rights - Four key legal questions here: 1) What is a treaty? 2) What is the legal effect of a treaty? 3) How are treaty promises interpreted? 4) When may governments infringe on a treaty promise? The Origin of Land Treaties - Indigenous peoples’ right to collectively determine the future of their lands was formally recognized in the Royal Proclamation of 1763 The Constitution Act, 1982 - “Section 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. - Section 35. (2) In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada." The Legal Nature and Effect of Treaties - Since the Constitution Act 1982, courts have ruled: 1) A “treaty” is any solemn agreement between the Crown and a First Nation intended to bind future generations. 2) The legal effect of a treaty is to override general laws. 3) Treaty terms must be interpreted generously. 4) Governments may nonetheless infringe treaty rights if: - they can prove that the infringement is justified because of a “compelling and substantial” public purpose and that their action is consistent with the honour of the Crown Lesson 2: Aboriginal Title The Law of Aboriginal Title - Tsilhqot’in - Facts: The Tsilhqot’in people lived for centuries in an area of British Columbia. The British Crown asserted sovereignty over their territory in 1846, but the Crown never entered a treaty to address their land rights. When the B.C. government issued logging licenses on their territory without their consent, the Tsilhqot’in sued for a declaration that they still had title to 5% of their traditional land. - Held: Declaration of aboriginal title granted. The Crown must obtain Tsilhqot’in consent to future logging, or constitutionally justify infringement of their title rights. Legal Principles: the test for proving Aboriginal title - In the absence of a treaty, an aboriginal group that proves it exclusively and sufficiently occupied a territory when Canada asserted sovereignty in the area holds aboriginal title to those lands. - In deciding whether the group had sufficient occupation: - Courts must consider both common law property concepts and Aboriginal perspectives on use of territory (their laws and customs);  - They must also consider the character of the land and the nature of the Aboriginal society at the time sovereignty was asserted; - In all cases, the Aboriginal group must prove it regularly used the land Lesson 3: The Crown’s Duty to Consult Haida Nation v. BC - Facts: The Haida people had lived on the Haida Gwaii islands for centuries and have formally claimed title to them for over 100 years. The Crown declined to enter a treaty. In the 1990s, British Columbia transferred old growth logging rights on the islands without seeking consent of the Haida people. The Haida Nation sued to challenge the province’s right to issue the logging licenses and claimed aboriginal title to their traditional lands. - Held: While the Haida people’s aboriginal title claim proceeds in the courts, the Crown has a duty to consult them about proposed forestry and other resource decisions affecting their traditional lands. - Legal Principles: - The Crown has a duty of honourable dealing toward Aboriginal peoples, which arises from the Crown’s assertion of sovereignty over an Aboriginal people and its de facto control of land and resources that were formerly in the control of that people. - Where treaties remain to be concluded, the honour of the Crown requires it to negotiate in good faith, and in the interim to consult with Aboriginal groups about proposed uses of their traditional lands. - The duty to consult arises i) when the Crown knows of a potential s. 35 right (including treaty rights and title rights), and ii) when the Crown contemplates action that may interfere with that right. - The extent of those consultations depends on the strength of the Aboriginal claim and the severity of the proposed interference. - Good faith is required on both sides, but the Crown ordinarily has no duty to obtain the consent of the Aboriginal group affected. Lesson 4: Sovereignty Sovereignty: the Canadian Law - The problem: Indigenous peoples were not consulted when Canada wrote its first constitution, in 1867. - The terms of that constitution, the BNA Act, are still part of Canada’s current constitution. - The BNA Act gives the federal government primary jurisdiction over “Indians and lands reserved for the Indians”. - The federal government has used the jurisdiction since 1867 to regulate almost every aspect of Indians’ lives on reserves, to limit their governments' powers, and to send Indian children by force to distant, “residential” schools. - Where there was opposition, the RCMP was sent in to evict traditional councils from their chambers or longhouses. - To date the Canadian courts have consistently rejected Indigenous peoples’ assertions of sovereignty (that they have the right to make laws for their own territories) and self-government. - Tsilhqot’in is an example – see p. 21, para 1, where only Crown sovereignty is recognized by the court. Sovereignty: the problem in theory - While the Canadian courts have ruled that Canada is now sovereign over Indigenous peoples, they have not explained how this occurred. - Did early explorers acquire the right to rule Indigenous peoples and settle their lands by planting flags?  - Did Canada acquire sovereignty by simply asserting that it had this right? - Or by entering a treaty with other nations? - (an 1846 treaty between the UK and the US is the basis of Canada’s claim to sovereignty over BC) Sovereignty: The Way Forward - While Canadian law recognizes its sovereignty over Indigenous peoples, many Indigenous people reject the denial of their ability to govern themselves in accordance with their own traditions and laws. - The SCC: prior occupation must be reconciled with Crown sovereignty: Tsilhqot’in, p. 21 - A possible solution: the negotiation of shared powers on Indigenous territories – “treaty federalism”, not very different in practice from federalism as it currently exists in Canada. Addressing the Disputes: The Way Forward - Given the age and intensity of legal disputes over treaties, aboriginal title and sovereignty over Indigenous peoples, the question becomes: by what process might we resolve them? - How might solutions be found that both sides will respect? - We do not typically resolve disagreements in our ongoing relationships by resort to the law alone. - Dialogue, and perhaps mediated dialogue, is arguably the best path forward. After all, as the SCC has concluded: “we are all here to stay”. Module 8: Canadian Human Rights Lesson 1: Introduction to Human Rights The constitutional and legislative framework Section 15 of the charter of rights and freedoms (1982) - Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical ability Section 15 Of The Charter Ontario Human Rights Code Constitutionally entrenched Quasi-constitutional legislation that has primacy over other provincial legislation This applies only to governmental action This applies to private actors, such as employers and landlords Recognizes analogous grounds of discrimination Recognizes only specific grounds of discrimination Administered strictly through the courts Complaints are first resolved through the Ontario Human Rights Tribunal Lesson 2: Establishing a Prima Facie Case of Discrimination Definitions of Discrimination To establish a prima facie case of discrimination, the claimant must show on a balance of probabilities that: 1. They possess a characteristic that protects them from discrimination 2. They have experienced an adverse impact within a social area protected by the code 3. And that the protected characteristic was a factor in the adverse impact Step One: One or More Protected Ground - Age - Ancestry, colour, race - Citizenship - Ethnic origin - Place of origin - Creed - Disability - Family Status - Marital Status - Gender identity, gender expression - Receipt of public assistance (in housing only) - Record of offences (in employment only) - Sex (including pregnancy and breastfeeding) - Sexual orientation Step Two: Adverse Impact in a Protected Social Area - Services, Goods and Facilities - Accommodation - Contracts - Employment Lesson 3: The Employer’s Duty to Accommodate To establish the defence of bona fide occupational requirement, the respondent employer must establish: 1. The standard was adopted for a purpose rationally connected to the performance of the job 2. The standard was adopted in an honest and good faith belief that it was necessary for the fulfilment of a legitimate work-related purpose 3. The standard is reasonably necessary to the accomplishment of a legitimate work-related purpose The duty to accommodate - A legal requirement in human rights law to take steps to remove discriminatory barriers to employment, including altering schedules, rules or work patterns or changing the physical design of a workplace Undue Hardship - The legitimate defence that an employer may raise to justify why it could not provide an accommodation to an employee. Thus standard is demanding and requires the employer to demonstrate that significant difficulties - beyond mere inconvenience - would result if it had to accommodate the employee