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Constitutional Final Outline - Waterman

ABORIGINAL LAW

Basic Facts

11 or 12 Indigenous language families

1M+ people of Aboriginal ancestry in Canada today

S35(2) of our Constitution uses the term the Aboriginal peoples of Canada, which includes Indians, Inuits, Mtis

700,000+ status Indians and 200,000+ non-status Indians (same ancestry)

50,000+ Inuit (no status/non-status distinction, people of the circumpolar north)

Mtis has two meanings: culture that arose near Red River post-contact but prior to European control of the Prairies and people with a particular ethnogenesis (typically people with one Aboriginal parent and one non-native settler parent)

When large groups of Europeans settled, so many Aboriginal people had died that they thought this was an empty place these people did not fade away; now theres a real renaissance of Indigenous peoples

Indigenous Constitutions

Indigenous constitution law relies and draws upon unwritten traditions:

Sacred

Natural environmental

Deliberation

Positivistic laws

Customary laws

An Indigenous constitution is a way of living, is a covenant between humans and the sky, water, rocks, insects, birds, plants, animals, spirits, past, present, and future generations

Creating written constitutions creates responsibility, reinforces unwritten traditions, enhances citizenship and identity, can reinforce sovereignty and law, to encourage sustainable development, to facilitate external relationships, to improve decision-making, to create a predictable framework for future action, etc

Key Points

Professor Borrows argues that we have Ab-originalism in Aboriginal law in Canada, while we have the living tree for the rest of our law not cool

With Canadian constitutionalism, a morally and politically defensible interpretation of Aboriginal rights will incorporate both perspectives: Indigenous legal traditions and the common law. (SCCs aspiration and Prof. Borrows argument)

"Aboriginal law" = law of the state dealing with Aboriginal peoples

"Indigenous law" = the authorities that come from Indigenous groups/legal traditions

Cant argue adverse possession (if youre there for 20 years as a user of land you can apply to have it recognized as yours) because it requires quiet enjoyment and Indians have been arguing all the way along that this land is theirs

No real treaties in BC because political leadership at first thought Indians were way too inferior to participate in the transfer of land, and by the time they decided to make treaties they didnt want to raise the money/thought it had become too expensive (this is by the 1870s)

1867-1973: Legal Exclusion

The passage of the Indian Act in 1876 was a blatant and purposeful attempt to assimilate Indians; to get rid of Indians by changing how they relate to land, their governance, the Canadian state, etc

Indigenous groups cant get much done without the approval from the federal government, and Indian agents hold a lots of power makes it difficult to set their own agendas

Historically, Canadian federal government has said that First Nations groups only have the authority that they have delegated to them

Indians couldnt vote federally until 1960, religious practices and economic pursuits were outlawed, residential schools ran for 175 years, protesting could lead to having your status revoked, access to courts were limited (not allowed lawyers for land claims), treaty promises werent honoured, reserve land was cut off, womens power was targeted, Indigenous vets didnt get the same benefits as white vets, Inuits were relocated, huge numbers of over-incarceration

Today, Indigenous communities face higher rates of unemployment, incarceration, health challenges, children in care, violence; lower rates of income and education

Colonialism isnt just historical in Canada = it is contemporary

1867-1973: Legal Continuity

Indigenous law continued to be transmitted, treaty-making occurred, family making occurred (which facilitated the passing down of their worldview), structures of leadership and advocacy were built

The NRTA (constitutional legislation) in the 1930s guaranteed that Indians would be able to hunt for food at all seasons without regulation, made cultural adaptations where needed (electing hereditary chiefs), and adopted underground practices where needed to keep things going, the White Paper was rejected in 1969

Royal Proclamation, 1763

Facts

When the British formally asserted themselves in North America

Assumed that British laws would be the guiding principles BUT specified that they would respect the native people

Key

Stated that:

The settlers wont molest or disturb the native people or walk in their hunting grounds

Indian lands belong to the Indians

Land holdings outside of the boundaries that were already laid down couldnt be created colonial governments are forbidden from taking Indian land

If the Indian land was to be passed to settlers, it had to be done in a public meeting and with the Crowns consent meant as a check and balance against voracious local interest

Note

Largely what governed allocation of lands between the Indians and non-Indians (until you get to BC)

Treaty of Niagara, 1764

Facts

Indians brought the Proclamation to the Niagara conference with 2000 people from 22 nations

Key

This was the Aboriginal affirmation of the Royal Proclamation the British process of signing the Proclamation wasnt through their legal tradition, so this extra step was taken

Connolly v Woolrich (1867) Quebec

Facts

In 1802 Mr Connolly moves to the Prairies, marries a Cree woman under Cree law, he stays with her for 30 years and they have six kids

He moves back to Montreal in 1831 and marries his second-cousin in a Catholic ceremony

After he dies, his son from his first marriage sues for a right to half of his estate

Issues

Can Cree marriages be ratified in Canadian law?

Who gets the half estate?

Analysis

Lawyer for second marriage says that the first cant be recognized because its uncivilized, pagan, savage, etc court rejects this

Doctrine of continuity established: Cree law was not abrogated when the British and the French arrived the law was left in full force and not modified in the slightest.

Self-government survives the assertion of sovereignty

This is constitutionally consistent with the Royal Proclamation and the Treaty of Niagara

Ratio

Aboriginal people hold rights to their territory not because of what the RP may have said about the matter, but because Aboriginal rights emanate from Aboriginal legal systems that predate the establishment of colonies on the continent

Stands For

There are diverse sources of Constitutional law (Cree law is apart of this)

The legal systems were harmonious for a long time

Self-government is not inconsistent with the common law (doctrine of continuity)

Our law is not just what our written documents or legislatures or judges say

Guerin v The Queen (1984) SCC

Facts

Land on Musqueam reserve was leased to Shaughnessy Golf Club in the 50s

The Indian agent had told the Indians theyd get lots, then told the golf club the Indians would get nothing communicated different terms

The lease was signed with way fewer conditions than had been promised to the Indians damages were assessed at $10M

Issue

Does the Crown owe a duty to the Musqueam to compensate for the loss?

Analysis

Trust law cant be applied here it concerns a fiduciary duty

What is the source of that duty? The source of Indian title?

Aboriginal title is a legal right derived from the Indians historic occupation and possession of their tribal lands under the common law [not just the RP] (Calder)

They are the rightful occupants of the soil, but their rights to complete sovereignty as independent nations were necessarily diminished

What is the nature of Indian title?

Sui generis of its own kind (personal/usufructuary & beneficial)

Can only use the land as an animal would, but its beneficial

Its best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians behalf when the interest is surrendered

What is the purpose of Crown duty?

Interposition: to put themselves between the Indians and prospective purchasers or lessees of the land, so as to prevent the Indians from being exploited

Discretion: through confirmation in the Indian Act, Parliament has conferred on the Crown discretion to decide for itself where the Indians best interests really lie. S18(1) of the Act.

What is the content of the duty?

Good faith, Crown scrutinized & supervised, oral terms guide (?)

Held

Yes they owe a duty Musqueam got pitiful damages

Note

Case stands for the proposition that Canadian law dealing with Aboriginal people will be attentive to both the common law and the Aboriginal people; Crown sovereignty is limited

Woolrich said Aboriginal title comes from Aboriginal legal systems; court here interprets Calder as deriving common law Aboriginal title from their historic occupation and possession of ancestral lands

Section 35(1) Framework: Shifting Burdens

***Important slide for the exam - provides a framework, easy to apply with a hypothetical

1. Proof of Right? On Aboriginal side

1. Right Extinguished? On Crown

1. Right Infringed? On Aboriginal side

2. Have to show one of these three things:

1. Crown action was unreasonable

1. That it denies preferred means of exercising that right

1. That it causes undue hardship

1. Infringement Justified? On Crown

3. Crown has to show that there was:

0. A valid legislative objective (can be almost anything)

0. That flows to the honour of the Crown

2. Honour of the Crown is on a spectrum

2. In Sparrow, it was giving Aboriginal peoples priority to the fish (before fisheries, sport fishers, etc) - right for food, social, ceremonial purposes

2. If it was found that Aboriginal people had a commercial right to fish, there's more proportionality between the Aboriginal and non-Aboriginal right - they could limit how much fish the Aboriginal people took

Section 35(1) Framework: Cases

1. PROOF OF RIGHT?

1. Ab. Right: Vanderpeet, Lax Kwallams - Integralat contact

2. Ab. Title: Tsilhqotin - Sufficiency at Sovereignty, Continuity, Exclusivity

3. Treaties: Marshall - Common Intention Best Reconciles

2. RIGHT EXTINGUISHED? (Sparrow clear and plain intent)

3. RIGHT INFRINGED? (Sparrow)

1. Crown Action is Unreasonable

2. Denys Preferred Means of Exercise

3. Causes Undue Hardship

4. INFRINGEMENT JUSTIFIED? (Sparrow, Haida, Taku, Mikisew, Beckman)

1. Valid Legislative Objective

2. Honour of the Crown (Haida)

Sparrow Framework

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Existing

What does existing mean?

Existing means unextinguished in 1982; it does not mean exercisable in a certain time in Canadas history

For something to be extinguished it has to have been done with clear & plain language and intent its a heavy burden (terminating something akin to property)

These rights are not frozen, are evolutionary

Aboriginal Right

Burden of proof on Aboriginal peoples to show that they have the right

Nature and scope of the right was determined by an expert anthropologist in this case determined that salmon fishing was integral to lives and culture from a F,S,C perspective

Why is the right to fish for FSC not extinguished?

Regulation does not equal extinguishment; no clear and plain intent from the Crown in the Fisheries Act to do so

The permits controlled Aboriginal rights, they did not define them

Recognized & Affirmed

How does s35(1) affect Parliaments sovereignty?

It constrains it

Court assumes that the Crown has the overriding sovereignty on the underlying land BUT S35(1) allows the court to question claims of Crown sovereignty

Crown sovereignty can be constrained because s35(1) incorporates fiduciary duty, sanctions challenges to social/economic policy, provides measures of control over government conduct, is a strong check against government action, and the government bears the burden of justifying negative effects on the rights (?)

Courts and Parliament must construe s35(1) purposively, generously, liberally; relationship is trust-like and not adversarial

Infringement

Why can the government legislate aboriginal rights?

They have no s1 textual permission to do so because rights are NOT absolute, thus can be infringed govt has to act in good faith (fiduciary duty), which means theres a restraint on Crown power, which gives them the right to infringe doesnt square

How do courts determine infringement?

Test for prima facie infringement must be conduct from the aboriginal perspective

1. Is the limitation unreasonable?

2. Does the regulation impose undue hardship?

3. Does the regulation deny to the holders of the right their preferred means of exercising that right? Undue hardship

Justification

If prima facie infringement is found, how can Parliament justify infringement?

1. Is there a valid legislative objective?

Could be conservation of resources or public protection, for example

2. Honour of the Crown special trust relationship and responsibility of the Crown must be the first consideration in determining whether the legislation/action can be justified

Priority (after conservation) has to go to Indian fishing before non-Indian commercial or sport fishing

Must infringe as little as possible and must compensate if necessary (like in a situation of expropriation)

Note

Court did not provide detailed reasons why fishing was an Aboriginal right, nor did it address the issue of the scope of protection accorded by s35(1) to Aboriginal commercial fishing practices

R v Sparrow (1990) SCC - right

Facts

Sparrow is from the Musqueam reserve, goes fishing in the Fraser River for salmon, sets up a drift net that is longer than permitted by his license

Criminally charged for this under a federal law that is provincially administered

He argues that he had an existing Aboriginal right to be there and to take fish out of the water doesnt matter what his license said

Issue

Is the Fisheries Act net length regulation inconsistent with s35(1)?

Outcome

They set a framework for how to test what would make something inconsistent with s35(1)

Send the matter back to trial this doesnt happen, an agreement was negotiated instead that works out an allocation prioritization to the fish and does give Indians rights to fish for F,S,C, and commercial purposes

Note

Case stands for the point that provincial regulation cannot define the Aboriginal right just because the province has done something in the past, those decisions do not affect the nature or scope of the right

R v Van der Peet (1996) SCC defining Aboriginal rights

Facts

Ms. Van der Peet sold ten salmon for $50, charged with selling fish contrary to the Indian food fishing license that she had

Know that she can fish for FSC purposes thanks to Sparrow, but not clear whether she can for commercial purposes

She argued that the licensing system was unconstitutional because it violated her right to fish commercially

Outcome

No aboriginal right to exchange fish for commercial purposes

Issue

How should aboriginal rights be defined?

Analysis

Aboriginal rights cannot be defined on the basis of the philosophical precepts of the liberal enlightenment they are equally important to Charter rights but they must be viewed differently

Note: if this was reformulated to see aboriginal rights as part of the checks and balances on government power, they could be grounded within the liberal tradition

General Principles

Interpretation must be generous, liberal, and in favour of aboriginal peoples; this arises out of the Crowns fiduciary relationship towards aboriginal peoples the honour of the Crown is at stake; and the govt must act in good faith (Guerin)

Rationale for entrenching aboriginal rights: they lived here pre-contact

Role of comparative law in defining rights: source of their rights are from aboriginal legal systems

Role of indigenous law in defining rights: the challenge of defining aboriginal rights stems from the fact that they are rights peculiar to the meeting of two vastly dissimilar legal cultures must incorporate both legal perspectives (aboriginal & imperial)

Test

The defining test for identifying aboriginal rights in s35(1):

In order to be an AR an activity must be an element of a practice, custom, or tradition integral to the distinctive culture of the aboriginal group claiming the right, and must have existed pre-contact

It must be one of the things that truly made the society what it was

Courts must take aboriginal perspectives into account, the practice should have continuity (this has to be flexible), must be conscious that evidence may not conform to evidentiary standards in other cases, claims must be adjudicated on a specific rather than a general basis

Lax Kw'allams - definition of Aboriginal right

Facts

LK live near Prince Rupert, engaged in a rich trade from Alaska to Northern California for candlefish (high fat content would render them for the grease). Chinook developed, potlaches, etc.

Today: a successful band that is not anti-development, but did turn down a $25B offer that threatened the fish

Issue

Does the LK have a right to commercially harvest and sell all species of fish within their traditional waters?

Court looked at: how do you properly characterize an Aboriginal right?

Analysis

Proper steps for characterization:

Precision: to be fair to all parties. Court said connecting the right to fish to the LK way of life was too broad. Must narrow the claim to satisfy the forensic rights of the defense (so they know exactly what to refute).

Practice-based

Continuity: generous, though realistic

Consider interests of all Canadians: not in the public interest to assert Aboriginal claims in this broad way

Group didnt follow the correct procedure for proving their rights.

Practice can evolve but subject matter cant cant transform trade in candlefish to trade in other species of fish (inconsistent with other decisions)

Quantitative pre- v post- contact difference must be takin into account

Held

No. Also did not make a finding for right to fish for FSC purposes.

Note

Big loss. To do with BC economic concerns?

What should a lawyer do when the test seems unjust?

Tsilhqotin (2014) SCC - title

Facts

6 bands, 3000 people, 1900km2 of land, started in 1983 with a lumber dispute, got to the SCC in 2014

Issue

What is the proper test for Aboriginal title?

Held

Radical or underlying Crown title is subject to Aboriginal interests (if they can be established)

Aboriginal title becomes a burden on Crown title like a layer that lays heavily over top

Burden of proof on the Aboriginal people to establish this interest is expensive

Aboriginal title allows for enjoyment, use, and management of the land

Governments can infringe Aboriginal title (if they have a compelling and substantial purpose, can justify it, and is in line with fiduciary duty)

Pre-proof of Aboriginal interest in resource development requires consults

Government legal duty to negotiate in good faith

Reasons

Crown: disputed that T nation even existed, their pleadings too imprecise, arbitrary boundaries, inconsistent evidence, population size, specific territories not identified = SCC says they fundamentally misunderstand Aboriginal title

SCC says: should take a functional approach to litigation moving forward

It overcomes difficulty in clarity of legal principles, the difficulty in evidence, and is better for justice/public interest

Used Delgamuukw standard:

Sufficiency of occupation at the time of the assertion of sovereignty: look to common law and Aboriginal standard, do a context specific factual inquiry (holistic), regular use of territory is sufficient

Continuity of the occupation from sovereignty until today: 1846 is the date of assertion of sovereignty for BC this is a bit odd/arbitrary

Exclusivity of occupation in the present: must be assessed from a sui generis perspective and the Indigenous perspective

Legal Characteristics of Title:

Terra nullius never applied in Canada.

The Crown title is burdened by Aboriginal title.

This underlying title gives the Crown a fiduciary duty and a right to encroach in the public interest.

Crown does not retain the beneficial interest no royalties off of T land.

Note

Date of assertion of sovereignty is untested in other parts of Canada. But it isnt 1763 in BC because BC thought the Royal Proclamation had already been repudiated by the time they joined Confederation; acted like it didnt exist from 1871-1973 (Calder). Its 1846 because thats when the Treaty of Oregon was signed, moving British North American territory up to where Canada is today.

If this area of law is shaky, it impacts many other elements foreign investment, business in general Tax dollars that then fund essential services

Marshall Canons of Construction for Treaty Interpretation:

1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation:

1. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories: Simon, at p. 402; Sioui, at p. 1035; Badger, at para. 52.

1. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed: Sioui,, at pp. 1068-69.

1. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed: Badger, at para. 41.

1. In determining the signatories respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties: Badger, at paras. 52-54; R. v. Horseman, [1990] 1 S.C.R. 901, at p. 907.

1. The words of the treaty must be given the sense which they would naturally have held for the parties at the time: Badger, supra, at paras. 53 et seq.; Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36.

1. A technical or contractual interpretation of treaty wording should be avoided: Badger, supra; Horseman, supra; Nowegijick.

1. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what is possible on the language or realistic: Badger, at para. 76; Sioui, at p. 1069; Horseman, at p. 908.

R v Marshall (1999) SCC - treaty

Facts

Donald Marshall caught ~360lb of eel (traditional Mikmaq food), sold it for ~$700 w/o a license, charged with violating a federal law

Peace & Friendship Treaties were signed in the Maritimes seven times between 1725 and 1779

Issue

Do his treaty rights from the 1760s prevail over the federal charge?

Held

Yes

Treaty rights can be paramount to s91/92 s35(1) is higher than the grants of powers. But, can be used to infringe the rights if they justify in accordance with the Sparrow test.

The Crowns regulation was not justified

Analysis

Treaty interpretation case

Evidence: what is the treaty? Crown says = truckhouses clauses. Marshall says = much broader, included rights to fish, hunt, trade, support themselves, etc.

Extrinsic evidence allowed commercial context (parole evidence), past cases (allowed even if no ambiguity in the document), unconscionability (Crown wrote it but treaty negotiated verbally)

Claim for the treaty right has to be rooted in historical evidence. Counter: this isnt a living tree way of looking at things. Persons allowed for vague, after-the-fact largess. Applying a living tree analysis to Aboriginal sui generis law could erode or emphasize rights.

Courts deciding on common intent that best reconciles Mikmaq and Crown interests by looking to what the founder said, what ratification debates said, and thats it. American-style approach. Only look back to contact for cultural practices thats all thats protected.

Purpose of negotiations?

What formed the basis of the treaties?

Crown relying only on written evidence findings is not adequate

Ascertaining terms of treaty court applies an officious bystander test for interpreting terms where text is incomplete. What would people there at the signing have thought? Honour of the Crown requires inferences can imply or infer what was reasonable in the specific context.

Note

Conflict after this decision with fishers unions thought if meant the Indians could fish anything and any time, take timber, etc

Court reissued a statement saying that the Indians have to go back to court, species by species, to prove they can fish them. Weird. Bending to public pressure?

Consultation and Proof of Rights (TREATY)

Haida Nation consultation required pre-proof of title/rights

Facts

Haida have been around for thousands of years, but there had never been a treaty.

Haida launched an application for an injunction to prevent the provincial legislature from renewing a tree farm license that they (the govt) had granted.

Haida said the renewal was an infringement of title and rights, but these had never been proven in court.

Issue

Can you engage the Crown with a duty to have its honour proceed even though theres no proven right?

Analysis

What are the sources of the duty to consult (gathering info) and accommodate (act on the info) by the govt before proof of rights/title has been established?

1. Reconciliation must be a way of protecting rights that exist but just havent been affirmed in Court

2. Never conquered must be a way of accommodating this fact

3. Recognizing title/rights take time the time it takes should not work to the disadvantage of Aboriginal people/Crown shouldnt exploit this

When is the duty to consult and accommodate triggered pre-proof?

Depends on the strength of the claim and the degree of adverse impact against the Aboriginal group.

Crown will need close to consent in circumstances like this one strong claim and high degree of impact.

In others, will just need to notify the group that theyre moving forward.

Consent is required if youve proven Aboriginal title

Held

Yes

Crown could not renew the license even though the Haida claim was not proven had to do deep consultation. The Aboriginal group has no duty to agree. Crown can engage in hard bargaining but must act in utmost good faith.

Taku River Tlingit consultation through third party assessment

Facts

Mining road was proposed through Tlingit territory

Province had an environmental assessment in place that included the Tlingit.

They said they needed their own separate process because they have constitutional rights (as opposed to property owners no constitutional rights)

Held

The environmental assessment fulfilled the consultation requirement as long as sufficient attention was given to the Aboriginal issues

The Crown can delegate this duty to a 3P, evaluate what the 3P has done, and then check off that they have met the duty to consult

Mikisew Cree consultation re: established treaties

Facts

The Mikisew Cree live at the top of the oil sands in Alberta, the province wanted to build a regional road to facilitate transportation, MC said it would impact their trap lines.

Clause in Treaty 8: Aboriginal people can hunt, fish, etc except for the Crowns right to take up land for mining, forestry, settlement, etc. MC party to this.

Held

MC succeeded and Crown failed, because Crown didnt provide proper notice.

Standard the Crown has to meet is low: must give notice that they will be taking up some land and then discuss the impacts. Must situate what they are doing with the Aboriginal peoples expectations in that part of the land.

Beckman v Little Salmon/Carmacks First Nation (Modern Treaties & Honour of Crown)

CHARTER OF RIGHTS AND FREEDOMS

Charter Implementation and Interpretation of S15

Sections

S52: supremacy clause - makes the Charter paramount to what the provinces and legislatures might do

Accomplishes the purpose of giving the judges the last word

S24: remedial section - if the law is not consistent with the Charter it can be struck down

Like with assisted dying legislation, court has various remedies it can use like giving the feds one year to amend legislation

S32: application section - who does it apply to?

Not to corporations or private actions, but to government

S33: override provision - court might declare a provision to be contrary to the Charter but the legislature can suspend that declaration of invalidity for 5 years

Is used very sparingly - political consequences are severe

S2,7-15: individual rights

S7: life, liberty, security of the person (can only be infringed in accordance with s1)

S15: equality rights

S3-5: political rights

S6: mobility rights/federal nature of Canada

S8-14: criminal rights

S16-23: language rights

S25-31: interpretive rights

S1: limits

S1 Limits

The Charter guarantees the rights and freedoms set out in its subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

R v Oakes [1985]

1. Law must be "pressing and substantial"

1. Proportionality analysis

1. Law must be rationally connected to its purpose. If it is arbitrary or unfair, it is not rationally connected and will fail.

1. Minimal impairment. Impairs the Charter right as little as possible and is "within a range of reasonably supportable alternatives"

1. Proportionate effects. Benefits must outweigh adverse effects.

2. Where Scalia would have a heart attack - why should courts be making these calls?

S32: Charter Application

A government nexus is needed to attract Charter scrutiny

Government action includes govt actors, acts, and inactions

Equality Rights: S15

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.

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

These are enumerated grounds for discrimination - the court also has "analogous" grounds

Court kind of assumed that living on reserve could be a ground to not be discriminated against, for example

Laval v Bedard (1973)

Held that Parliament is fair in stripping Indian women who marry off reserve of their status but not men because ALL of these women are treated the same. Huge dissent from Laskin.

Example of why the Bill of Rights (1960) wasnt cutting it.

Indian Act amended to rectify this post-Charter.

Andrews (1985) leading equality case

Facts

British laywer wants to practice law in Canada. Isnt admitted to the BC Law Society. Argues hes being discriminated against as a citizen from another country.

Held

This was a violation and it wasnt saved under s1.

Issue

Why does s15 allow for different treatment?

Analysis

What constitutes a violation of s15(1)?

1. Distinction in treatment

2. Burden or denial of benefit

Cant practice law

3. On basis of enumerated or analogous ground

Being a citizen of another country

S15 Characteristics

1. Equality is not about rational and irrational laws. Questions of rationality and reasonableness should be considered at the s1 stage of analysis.

1. The similarly situated test is not the test under s15 because sometimes equality requires differential rather than identical treatment. Sometimes, treating them differently is the mechanism of equality.

1. This is blasphemy in the US, but it is the international and Canadian standard

1. Equality is a contextualized balancing analysis. LOOK TO THE ACTUAL EFFECT more than the intent.

1. Equality is a comparative concept.

1. Not all distinctions, differentiations, or failures to distinguish come within the scope of s15. Only discriminatory distinctions come with the scope. Discrimination in the human rights sense is the mischief that s15 seeks to remedy.

Kahkewistahaw (2015) recent application of s15

Facts

First Nation (govt actor) revised its election code to say you needed a grade 12 education. Chief who was in power found himself unable to run because he only had a grade 10 education. Argued that he was being treated unequally and that the law discriminated against him perpetuates historic discrimination against people who havent graduated high school. Tried to use ground of age and analogous ground of reserve residency.

Issue

Does the educational requirement for political office in this context have a disproportionate effect of this group?

Analysis

No real evidence either way. The bylaw is designed to prefer reserve residents.

Held

Deferential standard given to the band supports Indian self-government.

Affirmative Action: S15(2) Test

1. Is the distinction based on enumerated or analogous grounds?

2. Is the program genuinely ameliorative?

3. Does the distinction serve or advance the object of the ameliorated program?

Alberta (Aboriginal Affairs) v Cunningham (2011) affirmative action case

Only Mtis people could participate in a certain system of govt held as fine

FREEDOM OF RELIGION

Religious freedom under the Charter consists of two basic ideas:

1. Establishment of religion: the state cannot, in the exercise of its powers, impose the state's preferred religion on individuals or on groups

1. Free exercise of religion: a contrasting approach to freedom of religion that gives emphasis to individual or group religious practice and stipulates that it is inappropriate for the state to interfere with religious belief or practice

Religious freedom is protected for: individual autonomy, protection of communal relationships, to minimize religious conflict, state might mistakenly suppress the true religion, acceptance of God should not be coerced

Freedom of religion has negative and positive aspects (JH Lebels dissent):

Negative: right not to be compelled to belong to a particular religion or to act contrary to one's religious beliefs

Positive: right to believe or not believe what you choose, to practice openly, to proselytize

What is religion?

Not secular, not social, not conscience alone

Comprehensive system of faith and worship that involves belief in a divine, superhuman, controlling power

It is about deeply held personal convictions of beliefs connected to an individual's spiritual faith and linked to one's self-definition

What is the definition and content of religion?

Individual personal choice, autonomy, equality, not forced

It is personal and subjective, linked to individual's personal or subjective conception of freedom

Charter s2(a)

2. Everyone has the following fundamental freedoms

a) Freedom of conscience and religion

R v Big M Drug Mart Ltd (1985) SCC

First SCC case about s2(a); about illegitimate purpose

Facts

Big M sold stuff on a Sunday; was charged with contravening the Lords Day Act

Issue

Is the Act contrary to s2(a) of the Charter because it compels religious observance?

Rule/Law

A corporation cannot be said to have a conscience or hold a religious belief

No basis to limit s2(a) to only those who possess religious beliefs

The freedom of religion is that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided they do not injure his or her neighbours or their parallel rights

There can be no coercion and all religions must be afforded equal treatment

Test for s2(a) analysis

1. Does the purpose infringe?

2. If not, do the effects infringe?

Effects test is only necessary if the legislation has a valid purpose; cant save legislation with an invalid purpose

Analysis

The govt is compelling people to abstain from otherwise harmless acts due to the religious practices of some it is coercive, inimical to dignity of non-Christians, and creates a hostile climate

Doesnt matter that the plaintiff is a corporation if the law impairs freedom of religion it does not matter whether the company can possess religious belief

Not consistent with s27: Charter shall be interpreted in a way thats consistent with preserving and enhancing the multicultural heritage of Canadians

The Act is religious in its purpose (from the name; purpose found from intention at drafting and not from subsequent meanings) and effect (see above)

Held

Purpose is defeated under s2(a) and is not upheld under s1

Edwards Books v the Queen (1986) SCC

Facts

Ontario Retail Business Act prohibited stores from opening on a Sunday with an exception for stores of a certain size (gas stations, corner stores, etc could stay open) four businesses were charged with violating the Act

The Act has a secular purpose its to ensure that retail workers get enough time off

Issue

Does the Act violate freedom of religion for the larger businesses caught by the Act?

Rule/Law

For a state imposed cost or burden to be forbidden by s.2(a) it must be capable of interfering with religious belief or practice. The burden/impact must be more than trivial or insubstantial.

The evils from which s. 2(a) may afford protection:

Coercive burdens on the exercise of religious belief (Big M), direct or indirect, intentional or unintentional, foreseeable or unforeseeable are potentially within the ambit of s.2(a)

Direct burdens will likely be invalid under purpose

For indirect burdens, go to effects

Analysis

Infringement on s2(a):

Indirect coercion to forego beliefs: Act makes it more expensive for those who observe a religious weekly day of rest other than Sunday

The effects on Saturday observing retailers and consumers is substantial and constitutes an abridgement of their freedom of religion

Direct coercion: Act compels non-believers to conform to majoritarian religious dogma by requiring retailers to close on Sundays

Judge dismisses this

s1 analysis:

1. Pressing and substantial?

Yes: protects family/community time; workers rights issues

2. Rational connection to purpose?

Yes: retail employees are more vulnerable

3. Minimally impairing?

Yes, satisfactory effort in the exemption option (small retailers can stay open)

4. Proportionality

Not disproportionate: balance between effort to accommodate Saturday observers while recognizing purpose of scope and quality of the pause day objective

Held

Act does violate freedom of religion in its effects but it is saved by s1 the secular purpose of a common pause day justifies the limit on religious freedom

Congrgation des tmoins de Jhovah de St-Jrme-Lafontaine v Lafontaine (2004) SCC

Facts

Congregation of JH trying to buy land to build a worship hall, dont like the properties available in the appropriately zoned area, find property elsewhere, ask the city to rezone, they say no, JH buy the land anyways and bring legal action

Issue

Does the municipality's decision in refusing to rezone constitute a violation of freedom of religion?

Held

Yes, it was a breach of the freedom of religion and sent the case back to the municipality to reconsider

Lebels DISSENT

Freedom of religion imposes on the state and public authorities a duty of religious neutrality that assures individual or collective tolerance, thereby safeguarding the dignity of every individual and ensuring equality for all

State has this duty of neutrality due to societal evolution; to protect individual private choice; to protect public order, safety, and morals; and this role is negative (no one should be compelled to believe anything they dont believe)

There might have been a violation of their freedom had no land been available, but since there was available land the city shouldnt have gotten involved to assist would be to manipulate its regulatory standards in favour of a particular religion

Syndicat Northcrest v Amselem (2004) SCC

Facts

Orthodox Jewish condo owners sign co-ownership agreement that includes the clause that they can't alter public space balconies

They alter them during the festival of Succot by building individual succahs on their balconies - religiously commanded to use them during the nine day festival

There's some back and forth, but the condo eventually takes action

Issues

1. Do the clauses in the declaration of co-ownership infringe the appellants' freedom of religion?

2. If so, is the refusal by the respondent to permit the setting up of a succah justified by its reliance on the co-owners' rights to enjoy property and their rights to personal security?

3. Did the appellants waive their rights to freedom of religion by signing the declaration?

Analysis

The majority advocated tolerating a practice where the individual sincerely feels it is connected to religion, regardless of whether the practice is required by a religious authority

Sincerity of belief must be proven, not validity

Sincerity determined through credibility and consistency of practice, though beliefs can change over time

Danger is requiring belief to be determined by experts: courts might become arbiters of scripture or doctrine

s2(a) analysis:

What does 2(a) protect?

Against burdens that are non-trivial

Those burdens have to be examined in context

No right is absolute

Need to also consider how the exercise of religious belief would impact others

Freedom or religion may be subject to overriding societal concerns

Why is there an infringement here?

2. There is a nexus with religion and there's no need to rely on experts

1. Individuals belief is sincere

1. The interference is more than trivial

1. Alternatives will lead to distress

2. Alleged deleterious effects on co-owners rights to peaceful enjoyment of property and personal security are minimal

2. Harmonious external appearance of building cannot be reconciled with total ban

2. Waiver cannot be maintained on the facts of this case

3. No evidence of awareness of signing away rights - didn't do so voluntarily or expressly

Held

There is a violation of religious freedom that is not justified by the bylaws

Alberta v Hutterian Brethren of Wilson Colony (2009) SCC

Facts

Hutterites sincerely believe that having their pictures taken violates the Second Commandment

Used to be they could hold drivers licenses without photos as religious objectors, then Alberta changed the law so that all licenses required photos in order to minimize identity theft associated with drivers licenses via a facial recognition data bank

Hutterites argued that the viability of their communal way of life would be threatened if members could not obtain drivers licenses

Issue

Does the photograph requirement unjustifiably infringe on freedom of religion?

Test

Test for an infringement of s2(a):

1. Claimant holds a sincere belief this was conceded by the Province

2. It has a nexus with religion this was conceded

3. The interference must not be trivial or insubstantial assumed by the lower courts

Oakes Analysis

Nature of the Limit on the s2(a) Right

Important to recognize that a community impact does not transform an individual claim (the essential claim here) into a group right; the collective impact is considered in the s1 proportionality stage (deleterious v salutary)

Is the Limit on the s2(a) Right Justified under s1 of the Charter?

Giving effect to every single religious claim could seriously undermine the universality of many regulatory programs to the overall detriment of the community, but;

Where a complex regulatory response to a social problem is challenged, courts will generally take a more deferential posture throughout the s1 analysis than they will when the impugned measure is a penal statute directly threatening the liberty of an accused

Is the Purpose for Which the Limit is Imposed Pressing and Substantial?

Yes the purpose is to prevent identity theft and fraud and aims are harmonization of international and interprovincial standards

Is the Means by Which the Goal is Furthered Proportionate?

i. Is it rationally connected to the purpose?

Yes restates why its P&S

ii. Does the limit minimally impair the right?

Yes its a reasonable option

Restates the need for legislative deference must impair as little as reasonably possible, but it still have to achieve the objective

Courts should not accept unrealistically exacting or precise formulations of the governments objective

The Hutterites proposal to just keep drivers licenses without photos not for identification purposes doesnt work here it compromises the provinces goal

They characterized the objective too broadly its just about preventing fraud in the licensing system

Note: where the validity of a law of general application is at stake, reasonable accommodation is not an appropriate substitute for a proper s1 analysis based on Oakes

iii. Is the Law Proportionate in its Effects?

Yes - must look to the salutary and deleterious effects

Salutary: security, harmonization, and safety

Deleterious: tricky to measure the seriousness of a particular limit on a religious practice, does mean that the Hutterites cant get licenses if they wont get their picture taken but casts drivers licenses as a conditional benefit or privilege; no evidence that hiring someone to take their goods to market would be prohibitive to their way of life (trial judge found differently)

The courts ultimate perspective is societal

Dissent

The major point of distinction is that the majority is looking at religion from the individual context, and the dissents are looking at it from the community & relationship context

Salutary effects are slight when you consider that Alberta has 700K non-licensees

Trinity Western University v British Columbia College of Teachers (2001) SCC

Facts

TWU is a private institution; had a teaching program where students would spend four years there and complete their degree with one year at SFU

TWU applied to run an education program entirely themselves

Denied due to the Community Standards document includes stuff that is biblically condemned, like homosexual behaviour

Argument: its contrary to the public interest for a private institution that appears to follow discriminatory practices to produce teachers that will then go into the public space

Issues

Did BCCT have jurisdiction to consider discriminatory practices? YES

Did BCCT justifiably infringe TWUs freedom of religion? NO

Analysis

BCCT effectively considered equality rights, but not freedom of religion rights cant be privileged over one another

The Community Standards document is not sufficient evidence to say that the teachers they will produce will be homophobic or will discriminate against gay people somehow

BCCTs decision does prevent members of a particular religious group from freely expressing their beliefs and associating to put them into practice

Court distinguishes between beliefs and action

SL v Commission scolaire des Chenes (2012) SCC

Facts

Ethics and Religious Culture course made mandatory in Quebec schools

Two Catholic parents claimed their kids having to take the course infringed their freedom of religion

They argued that it was an issue because it would confuse their kids and took a relativist approach (not truly neutral), teaching their kids that all religion was on the same footing

Issue

Does the mandatory ERC course deny parents freedom of conscience and religion?

Held

No

Analysis

Appellants had to show from an objective standpoint that the ERC class interfered with their ability to pass their faith on to their children failed to do so

Sincerity of belief that right was infringed is not enough

Its a rejection of a multicultural society (contrary to the Charter) to limit exposure to different religious beliefs

Cognitive dissonance is part of living in society it makes us better citizens

Absolute neutrality does not exist and the state is not required to live up to it

Note

Case was brought before the program was implemented Lebels concurrence states that the way is it implemented could possibly violate parents rights

Loyola High School v Quebec (AG) (2015) SCC

Facts

Also about the ERC program

Catholic school is saying that it should not have to teach all religions from a neutral perspective should be able to teach Catholic doctrine & ethics from a Catholic perspective, ethics from other religious traditions from a Catholic perspective

Would teach other world religious doctrines neutrally and objectively

By making the neutral ERC course mandatory, the Quebec government is infringing on our religious order

Issues

Was the a s2(a) infringement? YES

What is the proper legal standard for testing freedom of religion claims in the context of administrative law standards?

A reasonableness standard

Dor

Two sets of reasons were issued: a majority and a partial concurrence

The majority used the Dor case framework concerning discretionary administrative decisions for reasoning through the situation

With the Dor analysis there is a deference to the decision-makers in administrative bodies since they have knowledge that the court may not

Due to this deference, administrative officials (when exercising their discretionary decision making functions) must only make a reasonable decision

If the Charters implicated the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue this uses the same justificatory muscles as the Oakes test

But, this decision does not have to be correct.

So, it eschews a literal s1 approach in favour of a robust proportionality analysis consistent with these admin law principles

The partial concurrence considered the ministerial decision to deny the exemption to the school through the lens of s1 of the Charter and the Oakes test found that it breached s2(a) and that it was not justified under s1 [I didnt read the concurrence and we didnt discuss it]

Note

The Dor analysis seems to be out of step with larger themes of Constitutional supremacy

Great because now admin bodies themselves have to take Charter values into account OR terrible because admin bodies are held to a lower standard of sorts

I added lots of reading notes really only talked about how the Dor test is weird in class

Analysis

The exemption option exists in a regulatory scheme that anticipates and sanctions the existence of private denominational schools

The state has a legitimate interest in ensuring that students in all schools are capable, as adults, of conducting themselves with openness and respect re: differences

The ministers decision treats teaching any part of the proposed alternative program from a Catholic perspective as inimical to the states core objectives in imposing the ERC

It suggests that engagement with an individuals own religion on his or her own terms can simply be resumed to impair respect for others

The assumption runs counter to the objectives of the regulatory scheme and the impact on religious freedom is disproportionate this decision is unreasonable

Held

Denying the exemption did not strike a proportionate balance between Charter protections and the statutory objectives send it back to the Minister to reconsider

Mouvement Iaique qubcois v Saguenay (2015) SCC

Facts

A Christian, non-denominational prayer opened Council meetings; people can leave if they want to

Mr. Simoneau argues that it violates his freedom of conscience hes an atheist

Held

Yes, his freedom of conscience is infringed and it isnt justified

Analysis

Why does the state have a duty of neutrality?

Charter evolution nowadays, this is the case although it wasnt always

Religious belief is a moral framework for many if the state picked one, it would be creating a hierarchy of belief and worth

Neutrality helps to diminish discrimination

Frees from coercion, pressure, and judgment on the part of public authorities

It promotes multiculturalism this is enshrined in s27

Theres a democratic imperative people need to be able to participate fully in public life, regardless of their beliefs

Issue is not about complete secularity but about neutrality

Application to the Facts

The prayer is not non-denominational the council members think they are fighting for Christ (context analysis)

The prayer creates exclusion Mr. Simoneau is meant to feel isolated and stigmatized if he were to leave

This coercive element impairs his freedom of religion

Councils Submission

The prayer isnt neutral or non-denominational, yes the House of Commons opens with one but they have parliamentary privilege, and the preamble of the Constitution referencing the supremacy of God has no meaning for s2(a)

FREEDOM OF EXPRESSION

S2(b) of the Charter guarantees: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

R v Keegstra identifies three main interests that are protected under s2(b):

Self-government

Truth

Autonomy

The closer speech lies to these three cores, the harder it is for the government to interfere commercial speech seems to be a little less important, for example

R. Moons alternative approach that sees a positive role for the state to regulate speech:

The freedom must taking account of the social nature of expression

We must reject the instrumental (realization of a social goal) v intrinsic (protection of an individual right) dichotomy

It is both speaker and listener centered

Human agency can be diminished or negated through deceptive or manipulative expression and objectively harmful forms of speech can become prominent here is where the state would want to step in

Purpose & Scope

Local 580 v Dolphin Delivery Ltd (1986) SCC

Facts

Case concerns an injunction against secondary labour picketing by striking Purolator employees at DD

There were hoping that their picketing would keep DD employees from going to work, forcing DD to stop doing Purolator work and speed up the settlement of the K dispute

Issue

Does the injunction violate freedom of expression?

Analysis

Why is picketing considered expression?

It conveys a meaning/message that aims to persuade by deterring customers and soliciting aid from the public

Court takes a fairly broad view there is always an element of expression in picketing

Why is secondary picketing justifiably limited under s1?

It harms third parties who are not parties to the disputed contracts

It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties

Held

Yes but is justified under s1

Note

Secondary picketing was declared lawful unless tortious or criminal in a 2002 case overturned DD

Ford v Quebec (1988) SCC

Issue

Did French only signs violate s2(b)?

Held

Yes.

Language is so intimately connected to the form and content of expression that there cannot be true freedom of expression by means of language if one is prohibited from using the language of one's own choice "language colours the meaning and content of expression

AG Quebec v Irwin Toy (1989) SCC

Test for s2(b) infringement

Facts

Quebec Consumer Protection Law (CPL) prohibited advertising directed at kids under 13 and dictated the factors that were to be considered in determining who the ads were directed at; the regulations set out certain exemptions

Irwin Toy broadcast messages that the office in charge of CPL said were in contravention of the law

Irwin Toy brought an action that sections of the CPL were inconsistent with freedom of expression

Issue

Is commercial activity protected by freedom of expression?

Analysis

1. Was the Ps activity protected by FofE?

Yes, activity is expressive if it aims to convey meaning

Cant exclude non-violent expression on the basis of its content

2. Does the purpose or effect of the law restrict expression?

Purpose: Govt cant try to restrict content, single out particular meanings, control access to meaning, or control ability to convey meaning. Govt can aim to restrict the physical consequences of certain human activity cant litter, meaning you cant throw pamphlets on the ground this is about physical consequences, not about restricting content

Effect: Claimant must show how the law interferes with their search for truth, political decision-making, or self-fulfillment

Yes, the CPL legislation prohibits particular content of expression in the name of protecting children

Is the limit justifiable under s1?

It is pressing and substantial because it protects a vulnerable group children unable to discern fact from fiction, etc

There is a rational connection

Minimal impairment courts will take a more deferential approach when mediating between competing groups v when its the government v one person; there is no effective way of combatting the problem of advertising directed at children

Held

Yes but that law was not justified under s1. Law upheld.

Dissent

Not satisfied of the risk to children not pressing and substantial enough

FofE is too important to be cast lightly aside

Hate Speech

319

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offense

(3) No person shall be convicted of an offense under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.

The main issue around hate speech legislation is balancing the harm to a targeted group and society as a whole with the right to expression

US approach: the way to combat hate speech is with more speech marketplace of ideas concept

But, this can create silos of opinion and push people to other forums

Chomsky: speech is not just reflection theres a real risk of harming vulnerable populations

In Canada hate speech is restricted or regulated by both federal and provincial laws

CC prohibits the advocacy or promotion of genocide; the incitement of hatred against an identifiable group, when this incitement is likely to lead to a breach of the peace; and the willful promotion of hatred against an identifiable group; also enables to a court to seize/erase hate propaganda

R v Keegstra (1990) SCC

Facts

Alberta school teacher taught that the Holocaust didnt happen and denigrated Jewish people in a variety of ways; expected students to reproduce these opinions in his tests

Charged under s319(2) with unlawfully promoting hatred against an identifiable group

He applied for an order quashing the charge, alleging that the Code violated his freedom of expression

Issue

Is hate speech legislation a violation of freedom of expression under s2(b)?

Analysis

History:

Legislation was developed post WWII, HR instruments, and the Cohen Report

S2(b) protects:

Conveyance of meaning and the type of meaning is irrelevant

The Code overtly seeks to prevent expression

Hate speech is NOT a form of violence that would fall with Irwin Toy exception

General approach to interpreting s1:

Avoid inflexibility (different from US)

Objective of s319(2):

Harm caused to individuals human dignity AND society at large

Eliminating discrimination (international HR instruments discussed), protecting other Charter provisions (equality and multiculturalism)

Objective of protecting others from hate speech is of the utmost importance to prevent targeting and reduce tension

Objective of 2(b): truth, self-fulfillment, political process (hate speech can work to undermine this)

Proportionality analysis:

Content is irrelevant in the s2(b) analysis but IS relevant so s1 analysis

Doesnt think expression prohibited under s319(2) is closely connected to the rationale underlying s2(b) in the first place

Rational connection: suppression of hate propaganda reduces the harm such expression does to minority individuals

Minimal impairment:

S319(2) is not overbroad because private conversation isnt included, requiring actual proof of harm is very difficult/would ignore psych. trauma, difficult to prove causative link between hatred and harm but we know that its there, hatred defined by context, comments only intended to catch most extreme forms of expression, HR statutes and education isnt sufficient needs CC stigma

Balancing importance of objective against infringement

Getting rid of racism is of enormous importance and hate is far from the core

Held

Yes, it violates freedom of expression but it is justifiable under s1

Dissent

Irrationality of s319:

Chilling effect on defensible expression by law abiding people

May promote the cause of hatemongers/bring them sympathy

Public may view suppression of speech with suspicion and think theres some truth to it

Hatred is subjective

Other remedies are more appropriate

Infringement and consequences are serious, while claims of the gains are tenuous

Gaurady v France (2003) ECHR (France)

Facts

Author of a book about myths about Israel was convicted of the offences of: disputing the existence of crimes against humanity, defamation in public of a group of person (Jews), and incitement to racial hatred. He argued his freedom of expression had been infringed.

Issue

Was freedom of expression denied?

Analysis

There are limits to free speech, book does not constitute historical research but seeks to accuse victims of falsifying history and stir up political support, the state has an interest in peaceful co-existence

His acts were manifestly incompatible with the Constitutions fundamental values

Held

No

Holocaust Denial case (1994) Germany

Facts

Bavarian state government restricted the far-right National Democratic Party from promoting the Auschwitz Hoax at their meetings

Basis was the promotion of the thesis would likely cause denigration of the memory of the dead, criminal agitation, and criminal insult = all prohibited by their Criminal Code

Held

Not a denial of freedom of speech

Analysis

A demonstrably untrue fact is not protected by the guarantee of freedom of expression

In balancing defamation against a limitation on freedom of expression, both the gravity of the injury to reputation, and the question of whether the expressed assertion is true or not must be considered

Jews are in a special personal relationship with fellow citizens because of the history of the Holocaust context is important here

RAV v St Paul (1992) US SC

Facts

D and several other teenagers allegedly burned a homemade cross inside the fenced yard of a black family that lived across the street in the middle of the night

Prosecuted under the St Paul Bias-Motivated Crime Ordinance:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor

Issue

Does the ordinance violate his first amendment rights? Two respects raised: substantially overbroad and impermissibly context-based.

Held

The hate speech ordinance IS a violation of the first amendment: even thought the govt is regulating a supposedly unprotected category it may not do so in a context-based manner

Note

This is the American view cultural dimensions of expression are very significant

Expression Recent Cases

CBC v Canada (AG) (2011) SCC

Facts

Media organisations wanted to take photos, take film, conduct interviews in Quebec courtrooms, and broadcast direct audio from hearings.

Crown concern = witnesses being stampeded, journalists causing a disturbance.

Courthouse had designated area for journalists to do their work already and they could use the audio in writing their stories

Issue

Do these rules violate freedom of expression and if they do, are these limits justified?

Context

These rules were both customary and codified rules of decorum; changes were incremental

Freedom of the press is protected in case law part of the checks and balances of justice, to protect citizens from arbitrary state action/abuse, educates citizens on our justice system. It enhances s2(b).

Note: court is putting an unwritten principle (albeit an important one, freedom of the press) of constitutional law next to a Charter argument (freedom of expression) and trying to balance the two

Is an open court of crucial importance in a democratic society (court says so)? Why doesnt the court say that having an open is court if part of FofE?

Test

Is FofE violated?

1. Does the activity have an expressive content (convey meaning)? Irwin Toy

Yes. Rules target how that meaning can get out.

2. Is the activity excluded from s2(b) protection as a result of location or method of expression? [From case with the strip club that had a speaker that blasted inside audio onto the street]

Location: no. Journalists have always been allowed in courthouses as public spaces.

Method: no. Their method of newsgathering has long been accepted.

3. If the activity is protected, does infringement flow result from the purpose or effect of govt action?

No. The purpose is to limit film-making and conducting interviews, which are part of journalism.

Found that both the rules and the limit on audio recordings violated freedom of expression (s2(b)) and press.

S1 Analysis

Media organisations were denied their request for a higher standard of proof specifically for the press said they were fundamental to the democratic process/to the core of FofE. Court says not changing the standard just because youre press.

Media prohibitions prescribed by law? Yes. Not too vague.

1. Pressing and substantial?

Yes objective is to ensure witnesses are dissuaded from testifying

2. Rationally connected to objective?

Yes to protect the witnesses and reduce stress

3. Minimally impairing?

For the filming, yes: there were other areas where they could do these things reasonable alternative

For the audio recordings, yes: you change the meaning of the testimony by changing the context when you broadcast it to the public [weak]

4. Do the adverse effects outweigh the salutary effects?

No: their info gathering abilities may be limited and it punishes all journalists for the poor potential behaviour of a few, but salutary effects far outweigh protects vulnerability of witnesses, privacy, etc

Held

Yes, rules do vioate FofE, and yes, they are justified

R v Khawaja (2012) SCC

Facts

Man charged with seven offences under the Anti-Terrorism Act brought a motion seeking a declaration that its provisions violate FofE, freedom of religion, and freedom of association

Issue

Is the prohibition of communication under this Act contrary to FofE?

Analysis

*Because the s2(b) argument is framed as the broadest of the Charter infringement claims, if its not infringed then there is no basis to content that FofR or FofA is

Purpose of the act is really to restrict violence/threats of violence just because you misunderstand what its about doesnt mean your FofE is infringed

Violent speech is not protected under s2(b)

Note

Keegstra set a higher standard for violence has to be physical violence

Saskatchewan (Human Rights) v Whatcott (2013) SCC

Facts

Four flyers were distributed by D into mailboxes. They were entitled Keep Homosexuality out of Saskatchewans Public Schools and Sodomites in our Public Schools. Ps alleged they promoted hatred against individuals on the basis of their sexual orientation.

Issue

It was held these flyers are not hate speech why?

Analysis

Question court must ask: whether a reasonable person, aware of the context ad circumstances surrounding the expression, would view it as exposing the protected group to hatred?

Found that they wouldnt

Judge decides not to interpret the Bible