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Social Development Constitutional Law

LIMITS AND CHANGE OVER TIME:

s.1.  The CCRF 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.
•    Text indicates Charter rights are NOT absolute; gov’t can limit them

Two main structural components of s.1:
1.    Requirement that all limits on rights be “Prescribed by Law”
2.    Requirement that all limits on rights be “Reasonable” as well as “Demonstrably justified in a free and democratic society”

“Prescribed by Law”:
•    Narrows the chance to argue for justification of an infringement of a guaranteed right or freedom; must be prescribed by the law
•    Serves as a “gatekeeper function”, restricting the instances a court can justify a Charter infringement
•    Related to “vagueness”: a law that has been found to infringe Charter rights will not satisfy the principles of fundamental justice if it is too vague
•    Protect rights by requiring that any limitations on rights have been carefully considered and authorized by the legislature

“Justification”:
•    Legal academics though SCC’s approach to s.1 justification wd be to balance rights claims a/g communal interests based on a reasonableness
•    SCC began to set down relatively narrow view of the values that wd justify limitation of rts under s.1
•    Pre-Oakes, rts were the norm, limits were the exception; limits were subject to stringent justification

R v. Oakes [1986]
Facts:    Oakes challenged the “reverse onus” re: possession/trafficking in the NCA, arguing it violated s.11(d) of CCRF
Held:    •    section of the NCA did violate s.11(d) of Charter
•    Court established “The Oakes Test” re: when the infringement could be upheld under s.1
•    Objective of protecting society from ills associated w/ drug trafficking was of sufficient importance to warrant overriding C’lly protected R&F
•    However, failed RC step (means chosen to implement the objective was not rationally connected to objective) since no rational connection b/w possession of small amt of narcotics and intent to traffic
•    Appeal dismissed
Reasoning:    Dickson: Two functions of s.1:
1.    Guarrantees the rights & freedoms set in the Charter
2.    Sets out the criteria against which limitations on those R&F must be measured
•    Crt is guided by values and principles “essential to a free and democratic society” (i.e. human dignity, social justice, equlity, variety of beliefs, participatory social/political institutions)
•    Crt will limit if these values are being furthered
•    R&F are NOT absolute; may need to limit them for collective goals of fundamental importance
•    Dual function of s.1 as both guarantee and justificatory basis for limitations on R&F

Two contextual considerations:
1.  Violation of C’lly guaranteed R&F
2.  Fundamental principles of a free and democratic society
stringent standard of justification
OAKES
TEST:    When is a limit reasonable and demonstrably justified in a free and democratic society?
•    ONUS of proving a limit is justified rests on party invoking s.1 and seeking to uphold limitation (gov’t)
•    Standard of Proof is b.o.p. (civil standard)
•    If gov’t fails any of these → NOT a reasonable limit.

I.   Pressing & Substantial Objective (P&SO)
•    Objective must be of sufficient importance to warrant overriding C’ly protected R&F
•    Standard must be high so that trivial matters do not gain s.1 protection
II.  Proportionality
•    Crt needs to balance the interests of society with those of individuals and groups
•    Means proportional to the ends
1.    Rational Connection (RC)
•    Measures must not be arbitrary, unfair or based on irrational consideration;
•    Means must be rationally connected to the objective
2.    Minimal Impairment (MI)
•    Means (even if rationally connected to obj) should impair “as little as possible” the RorF in question
3.    Balancing of Seriousness of the Effects a/g the Importance of Objectives
•    Must be proportionality b/w effects of the measures responsible for limiting the R&F and objective identified as of “sufficient importance”
•    Possibility that deleterious effects of measure on individuals/groups will not be justified by the purposes it is intended to serve
•    The more severe the deleterious effects of a measure, the more imp the obj must be if the measure is to be reasonably and demonstrably justified in free and democratic society
•    See Dagenais for this part of test

Approach to s.1 Post-Oakes
o    Trend towards more deferential, flexible, reasonable-based approach (Edwards, Irwin)
o    More deference to gov’t means more rights violations are justified

APPLICATION OF THE CHARTER:

s. 32: Application of the Charter
•    “Government of Canada”: refers to the executive government (party in power, PM’s office)
•    “Parliament”: all parties in government (everybody)
•    applies to the legislative, executive, and administrative branches of government

The Debate About Application to Private Action

Dolphin Delivery Ltd. [1986] SCC
Facts:
•    Union wanted to “secondary-picket” DD, an ally of their employer, Purolator
•    Under the Labour Code of BC, secondary picketing was lawful
•    Purolator was an interprovincial courier and employment fell under federal jurisdiction (Canada Labour Code) which was silent on secondary picketing
•    Determination ∴ fell under CmL which finds secondary picketing to be unlawful interference w/ k’ual relations
•    Dolphin applied for injunction based on CmL to restrain the threatened picketing
Issue 1:    Does the Charter apply to the Common Law?
Holding:    YES; BUT only in so far as the Common Law is the basis for some government action which is alleged to infringe the Charter
Reasoning:    Language of s.52(1) is broad enough to illustrate that the Charter DOES apply to Common Law

Issue 2:    Does the Charter apply to private litigation divorced completely from any connection with govt?
Holding:    NO (Hogg)
•    Charter regulates government vs. private persons, not private vs. private
•    “the rights guaranteed by the Charter take effect only as restrictions on the power of gov’t over the persons entitled to rights.
•    i.e, actions such as er restricting ee’s freedom of speech, parent restricting mobility of child, landlord discriminating on basis of race cannot be breaches of Charter b/c no action by gov’t or leg. (must resort to branches of private law: tort, contract, human rights code, labour law, etc.)
Reasoning:    •    S.32 specifies who Charter applies to (legislative, executive, administrative branches of gov’t)
•    Need action by one of these actors, otherwise wd be immeasurable increase in scope of Charter
•    Don’t want Charter invading area of private litigation
o    McIntyre rejects Hogg’s position that a court order is governmental action, and that therefore, the Charter will apply to that private arrangement
o    This would widen the scope of the Charter application to virtually ALL private litigation
Issue 3:    What element of government intervention makes the Charter applicable in an otherwise private action?
Holding:    RULE:  “Where one private party invokes or relies upon government action to produce an infringement of the Charter rights of another, the Charter will be applicable”
•    Difficult to define
•    For Charter to apply, need direct and precisely defined connection b/w the element of gov’t action and the claim advanced (ie: Blaney [private vs. private], girl wants to play hockey; Charter was applied b/c one of the parties acted on the authority of a statutory provision which infringed the Charter rights of another)

Case at Hand:    •    No offending statutory provision specifically outlawing secondary picketing
•    No exercise of or reliance upon governmental action which would invoke the Charter
•    Appeal fails

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