Constitutional Law

Two ways Charter can apply to an entity:
1.    Entity itself is considered “government” for purpose of s.32
•    By its very nature
•    By virtue of degree of government control exercised over it
➢    All activities of entity will be subject to Charter regardless if they are ‘private’
2.    Nature of particular activity can be ascribed to government
•    Quality of the act at issue, rather than the quality of the actor
•    Act is truly governmental, i.e., implementation of statutory scheme or governmental program
➢    Only act will be subject to Charter, not the other private activities

Who is Protected by the Charter?
s.2 “everyone” → interpreted as extending to corporations (but not including freedom of religion)
s.15 “every individual” → restricted to natural persons

Eldridge v. British Columbia (A.G.) (1997)    Section 24(1) Remedy
Declaratory Relief and Suspension
Ratio:    Where sign language interpreters are necessary for effective communication in delivery of medical services, failure to provide them constitutes denial of s.15(1) and is not a reasonable limit under s.1
Remedy:    •    Pursuant s.24(1); no law in question;
•    Grant declaration that this is unconstitutional and direct B.C. gov’t to administer Act in manner consistent with requirements of s.15(1)
•    Declaration, as opposed to injunctive relief, is appropriate remedy b/c of the myriad options available to the government to rectify current system
•    Not Court’s role to decide how this should be accomplished
•    Appropriate to suspend the effectiveness of the declaration for 6 months to enable the gov’t to explore its options and formulate an appropriate response
•    Court “hinting”/telling legislature what to do under the constitution; “Dynamic Interaction”, “Dialogue” b/w courts and legilsature

Vriend v. Alberta (1998) SCC    Section 52(1) remedy
Application of Lamer’s Test in Schachter
Under-inclusive legislation
Facts:    Vriend brought action for declaration that (deliberate) omission of sexual orientation from Alberta’s Individual’s Rights Protection Act offended Charter (action NOT about the discrimination itself)
Attempt to file complaint under the Act was rejected b/c of the omission
Held:    Sexual orientation Read In to remedy under-inclusive legislation
Ratio:    •    Charter applied to challenges to an Act of the legislature that was under-inclusive as a result of an omission
•    The Act regulated private activity but this did not preclude the application of the Charter
Reasoning:    •    In its under-inclusive state, the Act created a distinction that resulted in the denial of equal benefit and protection of the law on the basis of sexual orientation (c/s.15)
•    Legislation not saved by section 1; no evidence omission had P&SO
•    Reading in sexual orientation minimized interference with its legitimate legislative purpose.
Para 168:  Indeed … if reading in is always deemed an inappropriate remedy where a government has expressly chosen a course of action, this amounts to the suggestion that whenever a government violates a Charter right, it ought to do so in a deliberate manner so as to avoid the remedy of reading in….[T]his is a wholly unacceptable result.

NB: Careful not to push the legislature too far; threaten to invoke the override b/c this was considered VERY intrusive
Remedy:    Pursuant s.52(1); Application of Schachter Test
1.  Define extent of the Charter inconsistency:
•    Exclusion of sexual orientation from the protected grounds of the IRPA
2.  Determine appropriate Remedy:
•    Reading Down is not available b/c violation is omission;
•    Severance is not available b/c wd result in striking down entire Act given # of ss. at issue
•    **Reading In focus on “twin guiding principles” of respect for role of legislature and respect for the purposes of the Charter; most appropriate way of remedying this under-inclusive legislation

Freedom of Expression
s.2.  Everyone has the following fundamental freedoms:
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Questions to ask when considering s.2b:
➢    “How is expression defined?”
➢    “Is the freedom positive (Freedom to say what you want) and negative (freedom not to express what you don’t believe)?”
➢    How are “time, place and manner” restrictions and “content” based bans treated differently?
➢    Is there any obligation on the government to positively support expression? Ought there be?
➢    In the s.1 analysis, how does the characterization of the content of the expression lessen/heighten the burden on the government to justify the infringement?

Model s.2b Analysis:
1. Is the particular expression protected under s.2b? *almost always YES b/c s.2b is very BROAD
Consider:
A)    Form
B)    Content

2.  Was the right infringed?
a) Did the law in purpose (what mischief was being addressed) or effect restrict FOE?
b) If only restrictive in effect, the claimant must show that the meaning restricted is linked to the values underlying FOE (McLachlin Keegstra Dissent):
1.    Pursuit of Political, Artistic and Scientific Truth
2.    Political and Social Participation
3.    Individual Autonomy and Self-Development

Related posts:

• No related posts.