POLS 2350
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University of Guelph *
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Course
2350
Subject
Political Science
Date
Oct 30, 2023
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docx
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POLS 2350
COURSE DESCRIPTION
Quizzes (weekly Sept 18-22 to November 20-24, due following Monday at 11:59pm)
- 25% - 2.5
Case Brief 1 (due October 2 at 11:59pm) -
25%
Legal Research Assignment 1 (due October 16 at 11:59pm)-
10%
Legal Research Assignment 2 (due November 6 at 11:59pm)
-
15%
Case Brief 2
(due December 1 at 11:59pm)-
25%
Office hours - : Wednesdays, 11:00am- 12:00pm, MCKN 506
TA - Anna-Lisa Barrett -
abarre06@uoguelph.ca
CASES DISSCUED IN CLASS -
https://decisions.scc-csc.ca/scc-csc/scc-csc/en/nav_date.do
and
websites such as CanLII.
https://www.canlii.org/en/
Case – research , summary
Legal research -
Demonstrate ability to conduct legal research (using Supreme Court of Canada
website, Parliament’s LEGISinfo website, and CriminalSource’s Sentencing Digest through WestLaw
Rosebella – candian court judge
Pols 2350
Lecture 1
Theoretical perspective of law
Types of law
Politics
– who gets what when and how, economic and social consequences rules , making decision
about how to distribute resources.
Politics is concerned by process
Process
- Also concerned with process by which rules and decisions are made
• Should these made by elected legislatures? If so, what’s the role of political parties, interest groups,
or. the electoral system?
• Should decisions be made by judges? Are judges sufficiently impartial, or if they make such
decisions, are they acting politically?
Consequences and are these judges acting in that way.
Theoretical perspective on law - Chapter 1 , role of law . there are different perspective what law is
what is should be. THE PERSPECTIVE ARE
Natural law -
Insists upon the link between law and
morality.
In other words, in order for a law to be
valid, it has to be moral. Illustrated by the expression:
“an unjust law is no law at all”
(St.
Augustine)
• Perhaps issues of identifying shared
conception of morality
in secular state comprised of multiple
religions, and so on
• For example: can help explain why Nazi officials were found guilty at Nuremberg trials, even if
following the law.
Martin Luther king
– letter is also an example to this
Legal Positivism
- Law as valid set of social rules adopted by
‘the sovereign’
• Law is a set of rules (not customs or conventions), passed and applied by public officials
government actors), enacted legitimately by specified government procedures, and backed by the
force of the state (for examples, fines, imprisonment)
Sovereign
are basically government actors
Procedural justice – the content of law is just and
criticism
that it
does not take natural law
view of
morality and justice in account to that
• While this may include conceptions of
procedural fairness
Rule of law
- Law is set of rules, passed (and applied) by government officials under a legitimate
procedure, and backed by the state’s force.
• Every person is equal before the law
• Government actors must follow the law
• Law is to be publicly promulgated (widely known)
prior to enforcement
(not to be applied
retroactively)
• Law applied by impartial judges.
If you don’t know something is illegal it should be widely known.
Legal Realism
- Statutory law (
made by legislatures
) and judicial decisions depend upon attitudes of
judges, economics, politics, and societal context. – everything shapes the law
Statutes and law are same thing
•
impartiality of judges
- View that formal legal doctrines cannot alone explain judicial decision-
making. Need to understand above factors, judges shouldn’t be partial.
•
Criticizes - Natural law and legal positivism as possibly
“unrealistic
” theoretical perspectives on
the law
Critical Legal Studies
- Challenge the validity of the “purposes, values, and assumptions of the legal
system” (on the basis of race, disability, gender, sexual orientation/identity, class, and so on)
Critical legal scholars criticize that the law supports the
interests of politically, economically, and
socially powerful groups
.
Critical studies and the legal profession
- Many judges and lawyers historically from privileged
socio-
economic backgrounds, or socialized in legal training “to think like members of a privileged group”
they are from privileged group even if not they are train to think that way.
Feminist Critical Legal Studies
- Criticizes that the law works to subordinate women, and the law is
gendered in nature
(for example, divorce, reproductive rights, gendered violence, and employment). It
is diveresed overtime but also to represent non binary and things
New Institutional
- Has elements of legal realism and CLS
• Courts as political institutions
• Concerned with connection to other branches of government (executive, legislative)
Laws in part a
product of political and socio-economic factors
, but can also privilege certain groups,
and influence strategies actors use in political and socio- economic systems.
Law shape socio economic
factors and it is shaped by socio- economic systems.
•
For example
: adoption
of Charter
gave groups another resource/ venue to
shape law and policy
(the
courts), and emphasized rights protection in Canadian legal and political culture.
While judicial ‘attitudes’ (ideology, background, and so on) are relevant in explaining judicial
decision-making (legal realism),
institutional rules and norms also shape judicial decision-making
• For example, norms of collegiality, the leadership of the chief justice
•
Courts play an important role
in governing, but the nature of their role depends on several factors:
-
Power to appoint judges, level of docket control
-
ability of courts to choose what cases to hear)
-
government funding of litigation,
-
the ability of courts to review and invalidate (deem unconstitutional) laws
-
Canada
has power to change law but it isn’t with every country.
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Impact of judicial decisions affected by
:
-
Reaction by legislative and executive branches (for example, whether funds are provided for
implementation)
-
Public opinion, Media coverage, Reactions from litigants (parties in judicial cases) and How
interest groups mobilize/ strategically utilize
TYPES OF LAW
1.
Domestic V International
Domestic:
for example, adopted in Canada, focus of this course is on domestic laws, adopted
federally and provincially.
International:
rules that govern disputes between states, or between actors in more than one state (for
example, people, businesses, organizations.
• For example, global conventions, treaties, and customs, often through the United Nations
• Lacks the same enforcement powers (‘teeth’) the state has domestically
Domestic law-making and
judicial decisions
can be influenced by
international law,
For example:
international law influences in labour law decisions protecting collective bargaining
and right to strike under the Charter
. ( can have impact domestically)
Public law
• Governs disputes involving
the state
• Involves a public interest
• For example: constitutional law, criminal law, administrative law, and taxation law.
2.
Constitutional law (Public law)
Constitutional law: rules that define the type of government system (for example
, parliamentary
in
Canada),
the division of powers between federal and provincial/territorial jurisdictions (in federal
systems), and
govern relationships
between citizens/groups and the state in terms of rights and
freedoms (the Charter of Rights and Freedoms in Canada)
Non - federal states have unitary system
Issues like Abortion, hate speech, Indigenous treaty rights, Quebec secession, the death penalty, prison
voting rights, election spending limits, same-sex marriage, affirmative action, and more!
3.
Criminal Law (Public law)
Rules that specify criminal acts, set penalties, and specify procedures (criminal investigations and
trials). For example: Mens rea and actus reus, evidence, juries, trials, sentencing, and more
Overlap
between these laws
as they bring up the charter issues.
4.
Administrative Law (Public law)
Legal standards to
govern actions by government actors
and remedy problems. reviewing decisions
made about immigration, employment, law societies, or CRTC
5.
Tax Law (Public law)
Rules surrounding collection of revenue by the state
Private Law
Governs relationships and disputes between private actors (individuals, groups, corporations) private
interests.
For example: family law, contract law, torts, and property law
6.
Torts
Rules surrounding an
intentional or unintentional legal wrong against a person
, property, or reputation
that entitles the injured party to a remedy. Example - Defamation, Internet harassment, negligence –
duty of care.
7.
Contract Law
Rules surrounding what constitutes a “legitimate and binding agreement between
two or more
parties
,” and how to enforce such agreements.
8.
Family Law
Rules that govern marriage or domestic relationships, and obligations during their dissolution.
Example: Marriage, divorce, child custody and access, spousal support, and so on.
9.
Property Law
Rules surrounding rights and obligations of owning real and personal property
Systems
Common law
Legal principles developed in past cases are applied or modified as necessary tothe facts of the case
before the court”
- Judge-made law
= common law, Past legal (judicial) decisions = precedents
Utilizes inductive reasoning (or reasoning from example)
Sources of law: judicial decisions (common law), legislation, written constitutions (in some
countries, such as Canada)
Used in the United Kingdom, as well as Canada, the United States, and more
Civil law
Judges in civil law systems are expected to resolve disputes by applying the legal principles
in the codes to the facts of the case”
“Codes contain a concise, but comprehensive, expression of rules governing relationships and
disputes”
Uses deductive reasoning (application of principles in codes instead of past judicial decisions)
Sources of law: written codes, legislation, written constitutions (in some countries)
Used in Quebec, much of Europe, Central and South America, much of Asia and Africa
Importance of having judges from Quebec (3/9) on the Supreme Court of Canada to ensure
knowledge of civil law system.
Sources Of Canadian Law
Magna Carta
Introduced to end monarchy system
Basically it was king is not above law
Law is powerful in itself
Rule of law principle was introduced – everyone is equal before law
Introduced by Runnymede, England, 1215, King John
Royal Proclamation and Quebec Act
Basically the act was that all the members should be British it weakened the French power, it
didn’t allowed catholic to work unless or until they are pleadged to be royal to British
This act was revoked by the Quebec act as it had aimed to assimilate the French-Canadian
population under English rule.
The reason it was passed was to gain the loyalty of the French-speaking majority of the
Province of Quebec.
French civil law
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Constitution Act, 1867
Similar principle to UK
Act of British Parliament
Formerly known
the
British North America Act, 1867
Governor general – executive power
House of commons and seneate – legislative powers
Money bills -
house generate
Royal assent of bills to become laws
Ss. 91 and 92
detail the division of powers between the
federal
and
provincial governments
• Federal (for example): trade and commerce, defence, banking, marriage and divorce,
criminal law,copy rights , patents – National level
• Provincial (for example): hospitals, property and civil rights administrative of justice in
province, matters of a local nature, education (s. 93)- Local level
• Canadian Charter of Rights and Freedoms (
ss. 1-34
)
• Indigenous rights (s
. 35
)
• Equalization
• Amending formulae
• How to change the Constitution
•
S. 52
(supremacy clause): any law that is inconsistent with Constitution is “of no force or
effect”
STATUTES (ACTS)
Laws enacted by legislatures
Authorize regulations (rules providing details and practical applications of law)
Regulation form Statutes
• Regulations subordinate to statutes
• Bill introduced at
first reading
, second
reading with full debate
– then committee process
,
third
reading – consideration of amendments
• Goes through procedure
in Senate
(for federal Parliament)
• Royal assent
• Statutes can override judicial decisions
CASE LAW
Law established by
court decisions
Application of precedent (past judicial decisions) in common law systems Hierarchy of courts
determines whether court has to follow precedent
For example, trial courts and courts of appeal (below SCC) need to follow decisions by
Supreme Court of Canada (SCC) (final court of appeal)
SCC can and does reverse its own precedents
Class 3
Statutory interpretation
Significance of statutory interpretation – what happens when judges need to interpret of
statutes, what is their political and democratic implication. What about judicial interpretation
of constitution?
There are shifts overtime. British influences on Canadian system
MODELS OF STATUTORY INTERPRETATION: BRITISH
• Literal interpretation of statute- here the courts simply look at the words of the statute and
apply them as they are written giving them their ordinary and natural meaning
• Close examination of phrases and clauses to determine
precise meanings
• Assumption that
legislative intent
fully
formulate
within statute’s language – use wording
The difference is little in Canada to the interpretation than of British
MODELS OF STATUTORY INTERPRETATION: EUROPEAN AND US
• And now Canadian
• Parliamentary or legislative debates, committee or commission reports, and statements (for
example: ministers’ speeches) can be used to determine legislative intent.
• Words in statute not always sufficient to determine intent
• Recognizes that there is ambiguity in statutes
Basically the words and statutes are not always determine in the statues so they don’t bealive
in the literal meaning. Judges are going to look at broader ways to fully think what legislative
intent is.
CHANGING APPROACH TO DETERMINING LEGISL ATIVE INTENT IN
CANADA
• In Canada, originally used British model – political process for enacting the legislation was
not subject to judicial scrutiny to determine legislative intent
• Beginning in 1980s, broader approach to determining
legislative intent
• Adoption of Charter of Rights and Freedoms in 1982
• Requires judges to be more attentive to the context of the construction of statutes, not only
for interpretation purposes, but also to determine whether laws are consistent with Charter
Rights
Pre Charter – influences British system and parliament sumpremacy but adoption of
Constitutional system – active role which was borderline with the American System .
Historical context we are changing approaches to Canada. Certain rules
THREE RULES OF STATUTORY INTERPRETATION
1.
Plain Meaning Rule
- Words of statute should be read in their
literal, grammatical
sense,
Literal reading even if incorrect result. Basically literal meaning even if it gives the
wrong result.
2.
Golden Rule-
Read the
statute in context
,
Grey v. Pearson
(1857): “In construing
statutes, the grammatical and ordinary sense of the words is to be adhered to,” except
when there is some
absurdity, repugnancy (anomaly – in case)
, or inconsistency with the
statute, such that it can be modified to remedy the absurdity or inconsistency
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3.
Mischief Rule (HEYDON’S CASE)-
England, 1584, Rule to understand legislative
intent, Consider:
common law
before statute’s enactment; the “mischief” or problem the
common law did not sufficiently address; Parliament’s remedy to address the mischief;
and the true reason of the remedy
So if law doesn’t understand then Parliament
legistative creates mischief or problem but
statutes can be change or adapt a common law rule.
THREE GRAMMATICAL PRINCIPLES OF STATUTORY CONSTRUCTION
THE EXPRESSION OF ONE IS THE EXCLUSION OF THE OTHER”
• Expression of one thing (or class of things) excludes another thing
• For example: new property tax on owners of buildings – expression of tax on owners of
buildings, leaves assumption that this excludes owners of land without buildings from the tax
OF THE SAME KIND”
• Ambiguous phrases derive meaning from specific context
• For example: statute prohibits carrying of
”knives, rifles pistols, clubs, brass knuckles, or
any other such implements on their person”
• While machine gun would be considered of the same kind in this context like one statue
prohibits it , a garden spade would not
“TO BE KNOWN BY ITS ASSOCIATES”
• A general or ambiguous word followed by specific words will be defined by the context of
the specific words
• For example: statute requires licence to operate “vehicle, automobile, motorcycle, truck, or
machinery of a similar kind”
• General word
“vehicle
” defined by context of specific words that follow (all engine-
operated), such as to exclude need to get licence to ride bicycle
Vehicle is known to its associates that means engine operated.
LIMITATIONS OF RULES AND PRINCIPLES OF STATUTORY INTERPRETATION
• Rules
can conflict!
Political investigation to the interpretation in Canada
DRIEDGER’S “MODERN RULE” OF STATUTORY INTERPRETATION
• 1983, Elmer Driedger (law professor) in The Construction of Statutes:
• “there is
only one principle or approach
, namely, the words of an Act are to be read in
their entire context in their grammatical sense harmoniously with the scheme of the Act, the
object of the Act and the intention of Parliament.”
•
Context
•
Grammar
•
Harmonious with scheme, objective and Parliament Intent
RUTH SULLIVAN, CONSTRUCTION OF STATUTES (2014)
• “the court must adopt an interpretation that is a
ppropriate
. An appropriate interpretation is
one that can be justified in terms of
(a) its plausibility, that is, its compliance with the legislative text;
(b) its efficacy, that is, its promotion of legislative intent; and
(c) its acceptability, that is, the outcome complies with accepted legal norms; it is reasonable
and just.”
APPLICATION OF DRIEDGER’S RULE
• Frequent by SCC. For example: R. v. Basque, 2023 SCC 18
• Concerning s. 259(1)(a) of the federal Criminal Code (at time of offence): required order
banning offender charged for impaired
(damaged ) driving from driving for not less than 1
year
• Sentencing judge imposed 1-year driving ban, backdated to the start of the offender’s pre-
sentence driving prohibition
• Summary conviction appeal judge: erred in back-dating, but sentencing judge could give
credit for pre-sentence driving prohibition
Court of appeal heald that senstencing judge
could not give credit for pre sentencing
prohibition – this departed from mandatory minimum in statutes
R. V. BASQUE
• SCC needs to decide meaning of s. 259(1)(a) of feral criminal court
• Uses Driedger’s modern approach
• Text
: silent about whether pre-sentencing prohibition can count
whether it can count
minimum 1 year
• Context: different language in s.
109(2)(a)
of the Criminal Code
about ban on firearms,
ban “begins on the day on which the order is made
”
In terms on context parliament didn’t mention the begin of day which was error
• Purpose: provision establishing minimum punishment rather than a minimum sentence of 1
year
• If s. 259(1)(a) required minimum sentence
, results would be absurd – double punishment
for offender who had served
sentence awaiting trial
.
R. V. BASQUE: BASICS OF DISPOSITION
• Parliament’s intention maintained, whether driving prohibition is before or after sentencing
– effect on offender the same
• SCC allows appeal by Basque, sets aside ruling by Court of Appeal
• By the time Basque was sentenced, has already served mandatory driving prohibition in s.
259(1)(a)
• Sentencing judge erred with back-dating, but could give credit for pre-credit prohibition
(restoring judgment of summary conviction appeal court)
PRECEDENT
Precedents: past judicial decisions
• Stare decisis: “let the decision stand” or “to stand by things decided”
• Significance: stability in the law
• Decisions made by the Supreme Court of Canada bind all courts in the country
• Decisions of provincial courts of appeal bind all courts within province (but not outside
provinces)
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REVERSAL OF PRECEDENT
• But these are example of vertical stare decisis
(higher level binds lower courts
)
• What about horizontal stare decisis? For example, should Supreme Court of Canada be able
to reverse its own precedents easily?
Supreme court will bind the lower court
PRECEDENT: STABILITY AND CHANGE
• In recent years, SCC has reversed itself concerning:
• Protection of the rights to bargain collectively and to strike (deemed constitutionally
protected)
• Constitutionality of web of Criminal Code provisions concerning sex work (deemed
unconstitutional)
• Constitutionality of ban on physician-assisted death (deemed unconstitutional)
• Things to consider: Should courts be able to reverse precedent easily, and under what
conditions? And why?
QUIZ QUESTION
Which of the following is true of the plain meaning rule?
Question 1
A.
Statutes should be read in their literal, grammatical sense
B.
Statutes should be read in context
C.
Statutes should be read such that specific words following an ambiguous word will define
the ambiguous word
D.
Statutes should be read in light of the legislative intent
Question 2
Horizontal stare decisis describes the following of precedent by a court at the same level
:
True
Question 3
Canada has taken a narrower approach to determining legislative intent since the
adoption of the Charter of Rights and Freedoms in 1982
: False
Which of the following are rules of statutory interpretation? (multi-select)
Question 4
A.
Plain meaning rule
B.
Golden rule
C.
Mischief Rule
D.
Askov rule
Which type of court hears disputes over copyrights and patents?
Question 5 options:
Provincial Superior Courts - Appeal Division
Federal Court of Canada
Provincial Court
Provincial Superior Court
Class 4
CANADA’S COURT SYSTEM
PROVINCIAL COURTS
(sep 20)
These courts handle most cases that come into the system. hey are established by provincial
and territorial governments.
a)
Criminal Division
Summary conviction offences (less serious)
• Offences under provincial statutes (example: Motor Vehicle Act)
• Theft under $5,000
• Gaming house, bookmaking, brothels, driving while disqualified
• Most indictable offences under Criminal Code and Controlled(wont hear serious cases like
murder and all)
Drugs and Substances Act – but not murder, and so on
• Charges under Youth Criminal Justice Act
b)
Family Division
• Separation, maintenance of children and spouses, custody, guardianship, child welfare,
divorce
• Small Claims Division
• Civil matters outside of family law
• Mostly contract and tort law – limited to monetary issues of less than $35,000
PROVINCIAL SUPERIOR COURTS
Trial Division
• Indictable offences (murder, piracy, bribing) and indictable offences by choice of accused.
Trial by superior court judge or superior court judge and jury
• Civil cases for amounts larger than small claims
• All libel and defamation
• Appeals from provincial courts (Criminal and Family)
• Divorce, except in jurisdictions with unified family
Appeal Division
• Civil and family law appeals from superior court - (Trial Division)
• Appeals of criminal cases from the superior court-
(Trial Division)
FEDERAL COURT OF CANADA
Trial Division
• Civil matters – disputes created by actions of federal Government
Disputes over trademark copyrights patents and maritime law
Appeals from citizenship courts
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Court is reflected to federal division power
Appeal division
Appeals form the trial division of the federal court
Appeals from decisions of federal boards commission and tribunals
For example – Immigration Board, Parole Board
SUPREME COURT OF CANADA
• Final court of appeal since 1949 (previously the Judicial Committee of the Privy Council or
JCPC, based in UK)
Prior to 1949 could be turned over by JCPC which problematic Cloninal
• Appeals in criminal cases from provincial courts of appeal
• Civil cases with issues of public importance
• Reference cases regarding constitutional matters (for example: referred to it by federal
government)
ADVERSARIAL SYSTEM
• Adversarial system = two competing arguments
• Judge or jury arrives at verdict after hearing opposing arguments
How does it apply Supreme Court- parties from different argument and there is third party
techincally doesn’t support any party but act as mediator. Third party interviners have
influence
OPEN ACCESS
• Openness and accessibility to the public
• Exception: proceedings of youth courts may be in camera when it is in public interest
• Ban on publication more common
• For example: often names of those convicted in youth court not published
• For example: publication of proceedings of preliminary inquiry – may jeopardize right to
fair trial
ADJUDICATIVE MODEL
• Access to courts: strict rules (for things such as standing, mootness, ripeness, and political
questions)
• Number of parties: two parties to dispute
• Role of judge: passive judge, with formal procedural rules
• Facts: adjudicative. Parties present facts, with strict rules of judicial notice
POLICY-MAKING MODEL
• Access to courts: liberalized rules of standing, mootness, ripeness, and political questions
• Number of parties: third parties allowed and even encouraged
• Fact-finding: social facts – parties and interveners present facts, but rules of judicial notice
relaxed
• Mode of reasoning: creating rules to balance interests and achieve ‘justice,’ relatively
greater law- making, and less deference to legislatures
Following the adoption of the Charter of Rights and Freedoms in 1982, movement from
adjudicative to policy-making model.
• For example: liberalized rules (standing, mootness, ripeness), use of social facts (including
those presented by third-party interveners such as interest groups), greater law-making, and
less deference to legislatures
Trial within the reasonable time – even though who are outside criminal justice system
ASVOK
S. 11(b) of the Charter: right to be tried within a reasonable time
• Accused in Askov: detained in custody for almost 6 months before being release on
recognizances; preliminary hearing 2 months later; trial not until almost 2 years after
preliminary hearing
• Majority of SCC finds trial delay unreasonable
• Stay of proceedings: trial ended by judges
• District apparently notorious for time until trial date
• Sets guideline for institutional delay of 6-8 months
ASKOV: MISUSE OF EVIDENCE
• Aftermath: over 40,000 criminal cases (mostly from Ontario) dismissed
• Court misuses and misunderstands social-fact evidence (using policy-making model) from
affidavit by Carl Baar
• 6-8 month guideline despite Baar’s note that data could not be directly applied to Quebec
• SCC didn’t seem to understand implications of its decision – for example, argued Toronto
courts were operating acceptably, but
25% were beyond 6-8 month guideline
MORIN (case law)
• Factors concerning reasonableness of delay:
1) length of delay,
2) waiver of time periods,
3) reasons for delay such
as a) time requirements of case, b) accused’s actions, c) Crown’s actions, d) institutional
resource limit, e) other reasons for delay, and 4) prejudice to the accused
• Guideline between 8-10 months for institutional delay in Provincial Courts
R. V. JORDAN
• Sets out new framework for determining reasonableness of delay, finding doctrinal issues
with Morin framework
• Heart of framework: Supreme Court of Canada sets out a presumptive ceiling of 18 months
for provincial courts and 30 months for superior courts
• (beyond which delay is presumed to be unreasonable)
• Then beyond the presumptive ceiling, Crown needs to rebut presumption of
unreasonableness based upon exceptional circumstances (reasonably unforeseen or
unavoidable, cannot be reasonably remedied)
• Such as discrete events (illness or unexpected event at trial) or particularly complex cases
• Crown cannot rely upon seriousness of offence or chronic institutional delay
ACCESS TO JUSTICE AND EMERGING MODELS OF CONFLICT RESOLUTION
• Issues with access to justice in criminal and civil cases (as evidenced by cases just as Askov,
Morin, and Jordan)
• Concerns about adversarial process to resolve family law disputes
MEDIATION
• Use of independent third party to attempt to bring parties to a mutual agreement
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• For example: concerning property, spousal support, child support, custody and access to
children
• If mediation fails, courtroom as fallback
• Pros of mediation: less expensive, parties can come to mutual agreement, ongoing
monitoring of settlement (further flexibility for changing circumstances)
RESTORATIVE JUSTICE (RJ)
• Non-adversarial, non-retributive approach to justice that focuses on healing for victims,
accountability for offenders, and involvement of citizens to create safer communities
• Principles (rather than punishment) include: recognizing harm, accountability, dialogue,
truth, voluntary participation, safety, and reparation
• Types include: victim-offender mediation, restorative conferences, and circle processes
RJ AND R. V. GLADUE
• S. 718.2(e) of the Criminal Code: “All available sanctions other than imprisonment that are
reasonable in the circumstances should be considered for all offenders, with particular
attention to the circumstances” of Indigenous offenders
• R. v. Gladue: Supreme Court of Canada holds that RJ principles should be applied alongside
or in place of more traditional sentencing principles
• Further discussion of sentencing principles in criminal law unit
Sentencing indeginuous people should consider factors like schoolhood trauma
CONSTITUTION ACT, 1867
• Formerly the British North America Act, 1867
• Act of the British Parliament
• “Constitution similar in Principle to that of the United Kingdom”
• Executive Power: Governor General
Legislative Power: House of Commons and the Senate
• Bicameral Parliament
• House: representation by population
• Senate: appointed
• Money bills must originate in the House
• Royal assent of bills to become laws
1867 CONSTITUTION: DIVISION OF POWERS
• Ss. 91 and 92 detail the division of powers between the federal and provincial governments
• If government passes law outside of its jurisdiction, courts may determine it “ultra vires”
• If courts determine that law is within its jurisdiction, deemed “intra vires”
FEDERAL POWERS (S. 91)
• Trade and commerce
• Unemployment insurance
• Taxation, borrowing of
money on public credit
• Postal service
• Census
• Military
• Navigation and shipping
• Quarantine
• Fisheries
• Currency, banking
• Bankruptcy and insolvency
• Patents, copyrights
• Indigenous Peoples
• Naturalization
• Marriage and divorce
• Criminal law and penitentiaries
PROVINCIAL POWERS (S. 92)
• Direct taxation within province
• Provincial offices
• Provincial prisons
• Hospitals
• Municipal institutions
• Local works (ships, railways, canals)
• Solemnization of marriage
• Property and civil rights in province
• Administration of justice in province and provincial courts
• Punishments/fines for provincial law
CONSTITUTION ACT, 1982
• Canadian Charter of Rights and Freedoms (ss. 1-34)
• Indigenous rights (s. 35)
• Equalization
• Amending formulae
• How to change the Constitution
• S. 52 (supremacy clause)
AMENDING FORMULAE
• No amending formula in the British North America Act, 1867 – patriation “brings the
Constitution home” and provides formula for domestic amendment
• S. 38 (general amending formula, or 7/50 formula): support from House of Commons,
Senate, and legislatures of 2/3 of provinces with at least 50% of population
• For example: 1983 amendment concerning Indigenous rights
AMENDING
• S. 41 (unanimity formula): unanimity of legislatures of federal and all provincial
governments
• Matters covered by unanimity formula: monarchy, provincial representation in the House of
Commons, use of English or French, composition of the Supreme Court
FORMULA
• S. 43: affects only certain provinces
• Can be amended with the permission of the federal Parliament and provincial legislature to
which the amendment applies
• Examples of matters: alteration of boundaries between provinces, use of French or English
language within province
PROVINCE ONLY AMENDMENTS
Examples of province-only amendments:
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• New Brunswick (1993) to provide equality of French and English- speaking communities;
• Quebec (1997) to restructure school boards on linguistic (not denominational) lines;
• Newfoundland (1997 and 1998) to create secular school system and abolish
denominational;
• Newfoundland (2001) to change name to Newfoundland and Labrador
See more here:
https://www.canada.ca/en/intergovernmental-affairs/services/about-canada.html
PRE-CHARTER: CANADIAN BILL OF RIGHTS, 1960
• Not constitutionally entrenched
• Weaker than Charter in 3 important ways:
1.Federal legislation that set out rights against the federal government (did not apply to
provinces)
2. Called “quasi-constitutional” but still an ordinary piece of legislation
3. Has no clause that allows for judicial review or remedies (like s. 24 of the Charter and s. 52
of the Constitution Act, 1982, which we will discuss later)
COURTS’ PROTECTION OF RIGHTS PRE-CHARTER
• Common law (judge-made) rules (such as defining police powers)
• Tended to interpret legislation in a way that allowed for most liberty
• Federalism: SCC occasionally said a province was outside jurisdiction in passing a law (for
example, Alberta Press Bill limiting press freedom)
• Implied Bill of Rights: Constitution “similar in Principle” to the UK (Alberta Press Bill and
Saumur), but did not attract a majority of judges
SECTIONS OF THE CHARTER
• Guarantee of Rights and
Freedoms subject to
reasonable limits (1)
• Fundamental Freedoms (2)
• Democratic Rights (3-5)
• Mobility Rights (6)
• Legal Rights (7-14)
• Equality Rights (15)
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• Official Languages of Canada (16-22)
• Minority Language Educational
Rights (23)
• Enforcement (24(1), and 24(2))
• General (25-31)
• Application of Charter (32)
• Notwithstanding Clause (33)
• Citation (34)
S. 1 (REASONABLE LIMITS CLAUSE)
• “1 The Canadian Charter of Rights and Freedoms 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
S. 1 ANALYSIS (OAKES TEST)
• Originally developed in R. v. Oakes (1986)
1. Is there a pressing and substantial objective?
2. Is it proportionate to the objective?
• Are the means rationally connected to the objective?
• Is it minimally impairing to rights?
• Is there proportionality between the deleterious and salutary effects of law? (balancing)
Case Citation: R. v. Oakes, [1986] 1 S.C.R. 103,
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/117/index.do
FUNDAMENTAL FREEDOMS
• “2 Everyone has the following fundamental freedoms:
• (a) freedom of conscience and religion;
• (b) freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication;
• (c) freedom of peaceful assembly; and
• (d) freedom of association.
DEMOCRATIC RIGHTS
• “Democratic rights of citizens
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• 3 Every citizen of Canada has the right to vote in an election of members of the House of
Commons or of a legislative assembly and to be qualified for membership therein.”
LEGAL RIGHTS (SS. 7-8)
• “Life, liberty and security of person
•
Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
• Search or seizure
• 8 Everyone has the right to be secure against unreasonable search or seizure.”
LEGAL RIGHTS (SS. 9-10)
• “Detention or imprisonment
• 9 Everyone has the right not to be arbitrarily detained or imprisoned.
• Arrest or detention
• Everyone has the right on arrest or detention
• (a) to be informed promptly of the reasons therefor;
• (b) to retain and instruct counsel without delay and to be informed of that right; and
• (c) to have the validity of the detention determined by way of habeas corpus and to be
released if the detention is not
LEGAL RIGHTS: SS. 11-13
• Proceedings in criminal matters (paraphrased)
• 11 Any person charged with an offence has the right
• (a) to be informed without unreasonable delay of the specific offence;
• (b) to be tried within a reasonable time;
• (d) to be presumed innocent until proven guilty;
• (e) not to be denied reasonable bail without just cause;
• (h) not to be tried or punished for it again; and
• Treatment or punishment
EQUALITY RIGHTS
• “Equality before and under law and equal protection and benefit of law
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• 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, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age or mental or physical
disability.”
• S. 15(2) protects affirmative action/ ameliorative
Weaker docunment due sec 24.
S. 24: JUDICIAL REVIEW & REMEDIES
• Constitutionally entrenched and applies to all levels of government
• S. 24(1) specifically authorizes courts to remedy rights violations: “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.”
• Authorizes courts to review laws for consistency with the Charter (judicial review) and
enforce constitutional limits on government / remedy rights violations (judicial activism)
S. 33 (NOTWITHSTANDING CLAUSE)
“33. (1)
Parliament or the legislature
of a province may expressly declare in an Act of
Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall
operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter
Various rights such as fundamental freedoms. The courts cannot invalidate on grounds of
section 15 – this tries address the Charter legislation to overpower the legislation
S. 52: CONSTITUTIONAL SUPREMACY
• S. 52(1) of the Constitution Act, 1982 codifies constitutional
supremacy
: “The Constitution
of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions
of the Constitution is, to the extent of the inconsistency, of no force or effect.”
• Contrast to parliamentary supremacy in protecting rights under Bill of Rights and prior
UK influence on Canadian charter system,
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S. 35: INDIGENOUS TREATY RIGHTS
• "35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are
here by recognized and affirmed.- Outside Charter , but important in Canadian constitution
act
September 27
LIVING TREE
• From where does this term originate?
• it orginates Edwards v. Canada (Attorney General) (Persons Case)
In case brought by ‘Famous Five, women ’ SCC decides that women were not “persons”
qualified for appointment to the Senate (1928)
• JCPC decides that women are “persons” qualified for appointment
to the Senate
(1929).
Why?
Judicial privy council – didn’t agree with ruiling it was finally court.
This is we where we get the definition of living tree
JCPC ON THE LIVING TREE
• “The B.N.A. Act planted in Canada a living tree capable of
growth and expa
nsion within its
natural limits.”
• Not a duty to “cut down the provisions of the Act by a narrow and technical construction,
but rather to give it a
large and liberal interpretation
” by supreme court of Canada and also
Charter
• “The word "person" as above mentioned may include members of both sexes, and to those
who ask why the word should include females, the obvious answer is why should it not.”
FROZEN RIGHTS
. – how living tree avoid issue of frozen rights
• When has the term “frozen rights” been used in Canada?
• In context of 1960 Canadian Bill of Rights
• One prime example of the limitations of a frozen rights approach to a rights document is the
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decision of the majority of the SCC in
Robertson and Rosetanni v. The Queen under the Bill
of Righ
t.
FACTS IN ROBERTSON AND ROSETANNI
• The case involved a bowling alley that was open on Sunday, contrary to the Lord’s Day Act
• Appellants challenged the law as infringing freedom to enjoy own religion without
government enforcing aspect of Christian faith (other religions observe other days)
• S. 1 of Bill of Rights protects freedom of religion
• Majority concludes that the Lord’s Day Act
does not violate freedom of Religion
FROZEN RIGHTS IN ROBERTSON AND ROSETANNI
• “the Canadian Bill of Rights is not concerned with ’human rights and fundamental
freedoms’ in any abstract sense, but rather with such ‘rights and freedoms’ as they existed in
Canada immediately before the
statute was enacted
.”
• “Historically, such legislation has never been considered as an interference with the kind of
“freedom of religion” guaranteed by the Canadian bill of rights
It is frozen not a lot of evolution which is one of the disadvantage binne require. After
Charter was introduced and then sumpreme court says that yes it viokates
SCALIA V. BINNIE
• Scalia (SCOTUS): judicial restraint, original meaning of Constitution, text of Constitution
• If Constitution out of step with society, should be amended by people (legislature)
• Binnie (SCC): text important, but living tree rather than “frozen rights” (original meaning)
Binnie supports orginal right srather than living tree approach.
JUST AMEND IT?
• Canada did not have mechanism to amend its own Constitution until 1982
• Amending the Constitution is difficult
• Unsuccessful constitutional conferences in past (Meech Lake, Charlottetown Accords): hard
to agree.
Maybe through judicial interpretation
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1S T REASON AGAINST FROZEN RIGHTS
• Frozen rights theory inconsistent with Canadian Constitution, institutions, and history
• Framers of Charter did not envision frozen rights – expected courts to develop the rights
• Courts to decide meaning of s. 1 reasonable limits clause
• Also balanced judicial discretion with s. 33 (notwithstanding clause) to maintain legislative
power
The test – OAKES TEST how section1 should be interpreted but also there is instutional
check and balance through section 33.
2N D REASON- binne favour
• Doesn’t learn lessons from cases such as Persons Case
• Proper for SCC to move forward with society and allow women to sit in Senate
• How can judges know the meaning of a document written over 200 years ago? (for
example, US)
• Counter-argument: appropriate for SCC to reject meaning intended by frames in years after
Charter’s adoption?
Some cases very little meaning of their decision were made.
2N D REASON CONTINUED
• Treatment of racial minorities (for example, Indigenous Peoples)
• Perverse uses of ‘original meaning’ in US constitutional history
• Example: Dred Scott v. Sandford (ruling that slaves were not citizens)
3R D REASON- binne
• Legitimacy of judges not from being elected, but from providing constitutional checks
and balances
• Constitutional hearings before Charter’s adoption: appointment of judges a strength
by placing rights outside of the political arena
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4 T H REASON – binne FAVOUR
• Living tree approach has served Canada well
• Support for SCC
• Belief that Constitution should be interpreted in light of experience over time
• Charter rights purposely written using very general language
• Elected members of parliamentary committee expanded scope of s. 15 equality rights
Living tree
• Persons Case
1.
Reference re Same-Sex Marriage: “The “frozen concepts” reasoning runs contrary to one
of the most fundamental principles of Canadian constitutional interpretation: that our
Constitution is a living tree which, by way of progressive interpretation, accommodates
and addresses the realities of modern life. Read expansively, the word “marriage” in s.
91(26) does not exclude same-sex
2.
Hislop: referenced again by Court in this case concerning survivorship pensions for same-
sex partners
3.
BC Motor Vehicle Reference: referenced to justify broader interpretation (not just
procedural) of principles of fundamental justice
under s.
7 of the Charter
Section 7 has underlimit
If the newly planted "living tree" which is the Charter is to have the possibility of growth and
a)
adjustment over time, care must be taken to ensure that historical materials, such as
the Minutes of Proceedings and Evidence of the Special Joint Committee, do not stunt
its growth.”
b)
While there was evidence from the Charter’s framers that they intended a procedural
(narrow) conception of principles of fundamental justice, SCC decided on broader
( including substansive) interpretation
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ORIGINILSAM
Oliphant
reading : living tree as orthodox legal position in Canada, with originalism as
“conservative and aberrant American preoccupation that has been soundly and uniformly
rejected in Canadian law”
• Justice Iacobucci: SCC “has never adopted the practice more prevalent in the United States
of basing constitutional interpretation on the original intentions of the framers of the
Constitution
He provides examples of components of orginilisam used by S.C
POLS 2350 Friday’s class
MORGENTALER (1976)
Presented a legal challenge to repeal abortion restrictions in all of Canada.
Unsuccessful challenge to s. 251 of the Criminal Code (which criminally prohibited
abortions unless they were carried out in accordance with the procedure laid out in the
section) under the Canadian Bill of Rights.
The SCC upheld the conviction of Morgentale
ABORTION IN THE CHARTER? 1980-1
Farmers intent
Kaplan (Solicitor General): ‘should be dealt with not by the courts, but by Parliament’
•
Chrétien (Justice): ‘we [pass] legislation on abortion... the court cannot go and
see whether we made the right decision’
•
Trudeau (PM): ‘No provision in the Charter... would either enshrine a right to
abortion or a
right to life for the unborn’
Charter challenge by Morgentaler to s. 251 of the Criminal Code
Procedure in s. 251: get a written certificate from a therapeutic abortion committee
(TAC) that stated that continuing pregnancy would “endanger ... life or health”
• 5-2 majority deemed s. 251 unconstitutional under s. 7 (right to life, liberty and
security of the person)
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• Justice Wilson: right to abortion
CERTIFICATE
• Ability to get this certificate reliant upon: 1) the province approving a hospital to
carry out abortions; 2) that hospital approving the creation of a TAC; and 3) a
majority of that TAC of three or more medical practitioners approving the
abortion as required to protect the woman’s life or health.
Dickson and Lamer:
interferes with physical and bodily integrity by forcing to remain
pregnant; delays cause health risks; issues with TAC procedure
• Procedural issues
: provinces must accredit hospitals, hospitals don’t have to create TACs,
4 approving physicians, vagueness of ‘health’
• Beetz and Estey
: delayed access to abortion, increasing the threats to pregnant person’
health
FREEDOM OF SPEECH
-
Keegstra was a teacher in Alberta who was charged under s. 319(2) (then s. 281.2(2)) of
the Criminal Code for willful promotion of hatred for making anti-semitic comments to
his students
-
The comments included referring to Jewish people as having evil qualities, being
responsible for wars, and having created the Holocaust, among other things
-
if students failed to reiterate this information in his class, they would do poorly in his
class
Does the Criminal Code provision under which Keegstra was charged with hate speech
infringe freedom of expression under s. 2(b) of the Charter? And if so, are the
infringements reasonable limits under s. 1?
• Majority applying Irwin Toy test:
1. Is the expression within the protected sphere of s. 2(b)? Yes, willfully promoting
hatred attempts to convey meaning
2. Was the purpose or effect of the provision to restrict expression? Yes, seeking to
prevent expression that promotes hatred
• Yes, s. 319(2) does infringe freedom of expression
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CONCLUSION IN KEEGSTRA
• Hate speech provision violates s. 2(b), but are saved under s. 1 as a reasonable limit
• Pressing objective to address harm by promoting hatred at target groups
• Provision proportional (rationally connected to objective, minimally impairing, and
balanced)
LITTLE SISTERS BOOK: FREEDOM OF EXPRESSION AND EQUALITY RIGHTS
• Little Sisters Book: LGBTQ+ bookstore, that provides inventory catering to community,
including erotica
• 80-90% of erotica imported from US
• Customs Tariff bans importing of materials that are “obscene” under Criminal Code
• S. 152(3) of the Customs Act puts the burden of proof on importer to disprove obscenity
(reverse onus)
ISSUE AND TRIAL JUDGMENT
• Do these laws/actions violate freedom of expression (s. 2(b) of the Charter), equality
rights (s. 15)?
• Trial judge determines that Customs officials had systematically targeted materials
imported by Little Sisters Book; inappropriately confiscated, damaged, delayed, destroyed,
materials imported multiple times
MAJORITY
IN LITTLE SISTERS
• Reverse onus in s. 152(3) violates s. 2(b) and not saved under s. 1 (unconstitutional)
• Rest of Customs legislation infringes s. 2(b), but is saved under s. 1 as reasonable –
pressing objective of preventing too much obscene material, and proportional
• Dissenting criticizes: “the Customs legislation [...] has create deleterious effects that far
outweigh the primarily monetary benefits which result from the chosen legislative approach, I
believe the Customs legislation as a whole cannot survive s. 1
LITTLE SISTERS: REMEDY?
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• Little Sisters Book has had s. 2(b) and 15(1) rights violated in officials’ targeting of their
materials
• LGBTQ+ erotica not more obscene than straight erotica
• No other remedy other than declaratory relief: declared officials have applied Customs Act
and Tariff in manner that violates these rights
• Criticism from dissenting: “I cannot agree that the remedy is simply to issue a declaration
and take it on faith that
Canada Customs – an agency which, it bears repeating,
S. 15 OF THE CHARTER
• Equality before and under law and equal protection and benefit of law
• “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.”
EGAN V. CANADA (1995)
• SCC accepted that sexual orientation is an analogous ground within the ambit of s.
15(1)’s equality rights guarantee
• Majority of the Court concluded that the opposite- sex definition of spouse in s. 2 of the Old
Age
Security Act did not violate s. 15(1) of the Charter or was otherwise saved under s. 1
• Inclusion as an analogous ground a big win
VRIEND V. ALBERTA (1998)
• Majority concluded that the exclusion of sexual orientation as a protected ground
under Alberta’s Individual’s Rights Protection Act violated s. 15(1) of the
Charter and chose to read in sexual orientation as a remedy
M. V. H. (1999)
• Opposite-sex definition of spouse in s. 29 of Ontario’s Family Law Act (FLA)
unjustifiability infringed s. 15(1) of the Charter
HALPERN (2003)
• Halpern: Court of Appeal for Ontario concluded that the existing common law definition of
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marriage violated same-sex couples’ equality rights under s. 15(1)
• Changed the definition to encompass “the voluntary union for life of two persons”
• Ordered the clerk in Toronto to issue the couples marriage licence
REFERENCE RE SAME-SEX MARRIAGE (2004)
• Federal government introduced legislation re-defining marriage as “the lawful union
of two persons” and then referred to SCC to confirm its constitutionality
• SCC: federal gov’t has jurisdiction over defining marriage, and marriage “does not
exclude same-sex marriage”
• SCC didn’t answer whether the opposite-sex only definition of marriage violated the
Charter
OCTOBER 4
UNITED STATES V. BURNS (2001)
• Respondents (Burns and Rafay) wanted on 3 counts of aggravated murder in the US (of
Rafay’s parents and sister)
• Burns and Rafay then returned to Canada; they are Canadian citizens (aged 18)
• US wanted Burns and Rafay extradited to the US; if found guilty in the US, they would be
sentenced to the death penalty or life in prison
issue because in Canada they wont face death penalty whereas in USA it was an option
Continue – Inncoent project , Rafay has appeal.
TO EXTRADITE OR NOT TO EXTRADITE
• Justice Minister ordered extradition of Burns and Rafay under s. 25 of the Extradition Act
without receiving assurances from the US that they would not be given the death penalty
• Does the Minister’s decision violate s. 6(1) of the Charter (mobility rights)? S. 6(1): “the
right to enter, remain in and leave Canada. – They wanted to remain Canada rather than USA
Canada has been in favour of death pleanty
THE APPROPRIATE CHARTER RIGHT
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• S. 6(1): death penalty only marginally a mobility rights issue
• S. 12 (right against cruel/unusual punishment): not as applicable b/c Cdn government not
providing punishment
• S. 7 of the Charter (right to life, liberty and security of the person, and not to be deprived
thereof unless accords with principles of fundamental justice): extradition would deprived
Burns and Rafay of S 7 rights
S. 7
• Will extradition violate the principles of fundamental justice, and shock the conscience?
• Balancing basic tenets of legal system
• Against extradition: death penalty rejected in Canada – cruel, arbitrary, unjust; final, but
potential for wrongful conviction
• Overall: objectives of extradition without assurances can be achieved by extradition with
assurances
DEATH PENLTY IS REJECTED IN CANADA, weather they actually committed the crime
or both them committed crimes. And when they retrospect they shouldn’t have submitted
goven the death pelnatly.
If any Canadian is facing any criminal trial in USA they shouldn’t be facing death penalties
even they committed a crime.
S. 1 (REASONABLE LIMITS)
• Extradition without assurances cannot be justified under s. 1 of the Charter
(unconstitutional)
• Objective: mutual assistance in fighting crime
• But extraditing without assurances not necessary to achieve objective
• Conclusion: Assurances needed in all but exceptional cases – this case doesn’t meet
exceptional circumstances
innocence project argues that Rafay was wrongfully convicted.
Voting rights
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S. 3 OF THE CHARTER
• “3. Every citizen of Canada has the right to vote in an election of members of the House of
Commons or of a legislative assembly and to be qualified for membership therein.”
• Is it justified to take away voting rights for those in prison?
SAUVÉ I (1993)
• SCC’s decision in Sauvé I: Blanket ban
on prisoner voting found to be
unconstitutional
• But SCC notes that
narrower ban on prisoner voting rights could be justified under s. 1
It cant be for all prisoner but it can be for some
• Parliament’s response: ban on prisoner voting for those serving sentences of two or more
years (s. 51(e) of the Canada Elections Act)
Sauvé II (2002):
SCC must decide if legislative response (through s. 51(e) of the
Canada Elections Act) is constitutional.
The court cannot have ban , court finds that clearly infringes the right s
• S. 51(e) clearly infringes s. 3 voting rights, but can it be justified under s. 1 (reasonable
limits clause)?
THE (UN)REASONABLENESS OF
LIMITING PRISONER VOTING RIGHTS
• Right to vote fundamental to our democracy
•
Framers’ intent
: broad language of s. 3, and cannot use s.33 (notwithstanding) to ‘override’
• Gov’t failed to identify pressing objective to denying right to vote (civic responsibility and
rule of law, & adding to punishment)
• Lacks rational connection (undermines respect for rule of law, not a legitimate form of
punishment)
• SCC (5-4) found
Parliament’s response unconstitutional, there should be no limit on
prisoner voting
SHOULD COURT OR PARLIAMENT HAVE ‘FINAL SAY’ ABOUT PRISONER
VOTING?
• McLachlin C.J.: Dialogue between courts and legislatures “should not be debased to a rule
of ‘if at first you don’t succeed, try, try, again’”
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• In other words, even though SCC said in Sauvé I that narrower ban on prisoner voting could
be saved under s. 1, and Parliament adopted a narrower
ban, SCC now rejects any limit on prisoner voting
• Is this legitimate?
Should court have finial say in this?
FRANK V. CANADA (2019)
• Issue: disenfranchisement of Canadian citizens living abroad for 5+ years under the Canada
Elections Act
• Challenged under s. 3 of the Charter
• A majority of the SCC emphasized that voting is a key political right related to citizenship
rather than residence
• Martin J.: objective of maintaining social contract evoked a vague political philosophy not
suited to
• Reason for the 5-year cut-off was unclear, and therefore not minimally impairing under s. 1
unconstitutional)
• Limitations on expat voting decades old but only actively enforced by Elections Canada und
er the Harper gov’t
• Trudeau government removed disenfranchisement of expats through Bill C-76, Elections
Modernization Act, passed in December, election modernization act
ELECTIONS
FIGUEROA V. CANADA (2003)
• Canada Elections Act requires that party must nominate candidates in min. of 50 ridings to
attain registered party status
WHY ITS IMPT.
• Benefits of status: candidates can issue tax receipts, provide unspent election funds to party,
list party affiliation on ballot
• Figueroa, of Communist Party of Canada, challenged 50-candidate threshold
challenged
under s. 3 of Charter
You might not known all the party people name but the PARTY Naame.
S.3 BROAD AND PURPOSIVE APPROCH
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S.3 right to vote in electoon and run for office
Through broad and purposive interpretation , s.3 includes that rights to effective
reprsentatation allows citizen to meaningfully participate in electoral process
Members and supporters of poltical parties with less than 50 candiadates can play meaningful
role in eletroal process
Party does not need to provide genuine ‘government option introduced unique intrest express
NOT REASONABLE
• Provisions infringe s. 3
• Infringement of s. 3 not justified under s. 1
• 50-candidate threshold is not proportional
• Provisions concerning transferring unspent election funds, listing party affiliation on ballots,
restricting issuing tax receipts not rationally
HARPER V. CANADA (2004
)
• Harper challenges limits on
election spending under the Canada Elections Act
under ss. 2(b)
(expression) and 3 (voting)
• S. 350: limits third party election advertising spending to
$3,000 in district and $150,000 nationally
• S. 351: bans individuals/groups from colluding to avoid limits
• Ss. 352-357, 359, 360, 362: requires third party to identify itself in all election advertising
and register with Chief Electoral Officer
• S. 323: blackout on polling day
This model is based on
EGALITARIAN MODEL
• Parliament’s approach to election spending under the Canada Elections Act seeks to ensure
equal dissemination
of points of view
• Prevent third parties with deep pockets from unduly influencing elections
• Egalitarian model meant to even the playing field
Big money
not to influence election
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S. 2(B) AND S. 3 ( does it violate)
• Under s. 3 (voting rights), limits on spending actually enhance right to vote / meaningful
participation in electoral process
• S.
350 infringes
s. 2(b) freedom of rights , not s. 3
• But s. 350 is justified under s. 1
• Pressing objectives: equality in political discourse, integrity of financing regime, voter
confidence in electoral process
• Proportional: rationally connected, minimally impairing (ex. only during election period,
advertising for candidate/party
OTHER SECTIONS
• Similar rationale for remaining sections
• Infringement, but saved under s. 1
US COMPARISON
•
SCOTUS
decision in Citizens United: conservative non- profit group challenged election
spending rules
• 5-4 majority of SCOTUS ruled in favour of unlimited election advertising spending by third
parties (for example, by corporations)
• Result: creation of super PACs (political action committees)
• A
lot of dark money with secret source
OCTOBER 6
Quebec secession and Indigenous rights
• Reference re Secession of Quebec
• R. v. Sparrow
• R. v. Marshall
• R. v. Kapp
REFERENCE RE SECESSION OF QUEBEC (1998)
• Reference case concerning constitutionality of Quebec separating from Canada
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• Reference = advisory opinion by court
• 3 questions
:
1.
Can Quebec secede from Canada unilaterally? (acting by itself)
ANSWER
Secession cannot occur unilaterally – requires principled negotiation with other
members of federation
But if clear majority of Quebecers on a clear question voted in favour of secession,
feds and other provinces would have duty to negotiate
• Constitution not just written – also includes rules and principles
• Canada based upon principles of federalism, democracy, constitutionalism, rule of
law, respect for minorities
2.
Does international law provide Quebec with the right to secede from Canada
unilaterally
?
Quebec does not have a right to secede from Canada unilaterally under international
law
• SCC has jurisdiction to answer – not ‘pure’ international law
• International law – right to self-determination for all peoples
• But right to secession under principle of self-determination only applies to colonial/
oppressed peoples
• Does not apply to Quebec; Quebec also has meaningful access to gov’t for political,
economic, social, and cultural development
3.
If domestic and international law conflict concerning the right to secede, which
takes precedence in Canada?
No conflict between domestic and international law on this question
INDIGENOUS RIGHTS
R. V. SPARROW (1990): DISPUTE
• Sparrow was charged under the Fisheries Act for fishing with a drift net longer than what was
allowed by
Band’s licence
Argued that he was exercising an existing Indigenous right to fish, and length restriction
was inconsistent with s. 35 of Constitution Act, 1982
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S. 35(1)
“Recognition of existing aboriginal and treaty rights
35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed”
S. 35(1) applies to rights in existence in 1982 (does not revive extinguished rights)
• Existing right should be interpreted flexibly to allow evolution over time
• Interpret s. 35(1) in purposive manner: generous, liberal interpretation to affirm Indigenous
rights
• Fed gov’t has burden of justifying regulations that infringe rights
• Crown did not prove that right had been extinguished
• Indigenous right to fish not extinguished by being regulated by Fisheries Act
• Regulations cannot determine scope of existing Indigenous rights.
SPARROW AND S. 35(1) ANALYSIS
• Does the law/reg interfere with an existing Indigenous right?
• Prima facie interference if it adversely restricts right to fish for food
• Justification:
• Valid legislative objective?
• Honour of the Crown in dealing with Indigenous Peoples
HONOUR OF THE CROWN
• In allocating right to fish, Indigenous food fishing takes priority over interests of other
groups
• S. 35(1) requires Crown to ensure gov’t regulation are in keeping with that, and that
guarantees plans treat Indigenous peoples in a manner that ensure Indigenous rights are
“taken seriously”
R. V. KAPP (2008)
• At issue in R. v. Kapp was the Aboriginal Fisheries Strategy, which included issuing
communal fishing licence to 3 Indigenous bands, allowing bands to designate fishers that
could fish salmon in the Fraser
River for 24 hours to sell their catch
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• Mainly non-Indigenous, commercial fishers excluded from fishing for 24 hours engaged in
protest by fishing at prohibited time and were charged
WHY THE COMMUNAL FISHING LICENCE?
• Indigenous groups living near the mouth of the Fraser River had historically fished it for
food, social, and ceremonial purposes
• R. v. Sparrow: SCC affirmed the Indigenous communal right to pre-contact fishing practices
central to their culture (para. 4)
• R. v. Van der Peet (1996): right had not been held to extend to commercial fishing
• Participation of Indigenous People in commercial fishery as topic of negotiation between
indegimous people
COMMERCIAL FISHERY
• Federal gov’t determined that economically-disadvantaged bands should have role in
commercial fishery.
Factors:
•
Pearse Report
(1982): prohibition on selling fish connected to Indigenous communities’
economic disadvantage. Called for negotiation of Indigenous fishery agreements
• Sparrow (1990): in order to fulfill honour of the Crown and fiduciary duty to Indigenous
communities (under s. 35(1), gov’t should consult with Indigenous groups in implementing
fishery regulations (para. 6)
R. V. KAPP: ISSUES
• The commercial fishers challenged the constitutionality of the communal fishing licence,
arguing that violated s. 15(1) (equality rights) of the Charter on the basis of race
• But s. 15(2) protects affirmative action programs!
.
section
15(2)
• “Affirmative action programs
• (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”
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S. 15(2) TEST AND KAPP
SCC’s S. 15(2) Test
1. Does the program have an ameliorative or remedial purpose?
2. Does the program target a disadvantaged group under the enumerated or analogous
grounds for discrimination? (para. 41)
• If yes to both, doesn’t violate equality rights guarantee in s. 15(1)
• Answer to both of these is yes in Kapp, so doesn’t violate s. 15(1) 20
S. 15(2) AND KAPP
• In other words, s. 15(2) protects affirmative action programs such as the communal fishing
licence. That mainly non-Indigenous fishers were given different treatment for 24 hours does
not make it discriminatory, particularly because the purpose was to ameliorate the conditions
of a historically-disadvantaged group (Indigenous bands)
• Communal fishing licence is constitutional
QUIZ
In Sauvé II (2002), the SCC determined that the narrower ban on prisoner voting was
reasonable:
False
S. 15 of the Charter (equality rights) protects affirmative action programs.:
True
The dissenting justices in Little Sisters Book criticized the majority's use of declaratory relief
as the remedy:
True
Which of the following justices argued for a right to abortion? :
Wilson
Which of the following are true of the SCC's advisory opinion in Reference re Secession of
Quebec? 1)
If clear majority of Quebecers on a clear question voted in favour of secession,
feds and other provinces would have duty to negotiate
2) There was no conflict between domestic and international law in question 3
3) Secession cannot occur unilaterally
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Family law
MIGLIN V. MIGLIN (2003)
• Linda and Eric Miglin were married, and ran a lodge together as a family business
• Equal shareholders; equal annual salaries
• The two separated and came to a separation agreement
• Children would live mostly with wife, husband would pay $60K/year in child support, pay
mortgage
• Husband gave wife ½ interest in home: $250K
• Wife gave husband ½ interest in lodge: $250K
• Wife with $15K/year consulting salary for lodge, for 5 years
• 4 years after separation agreement, soon before consulting agreement would end, relations
chilled between Linda and Eric
• Wife applied for sole custody, child support, and spousal support under s. 15.2 of Divorce
Act
• Should separation agreement be overridden?
• SCC says no,
separation agreement should be given determinative weight
PELECH TRILOGY
• SCC on Pelech trilogy: focus on self- sufficiency and clean break “too crude”
• For example: some circumstances require compensatory support, as in Moge case
• Pelech based upon Divorce Act, 1968, not 1985 version
MIGLIN: TWO-STAGE FRAMEWORK
• Application for changing spousal support from separation agreement considered
under two stages:
1.
Circumstances of agreement’s negotiation
(for example: pressure or vulnerabilities, legal
advice)
2.
Substance of agreement (
whether it still reflects parties’ intentions and whether it
complies with objectives of Divorce Act
MIGLIN: TWO-STAGE FRAMEWORK
• Application for changing spousal support from separation agreement considered
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under two stages:
1. Circumstances of agreement’s negotiation (for example: pressure or vulnerabilities, legal
advice)
2. Substance of agreement (whether it still reflects parties’ intentions and whether it
complies with objectives of Divorce Act)
S. 16 OF THE DIVORCE ACT, 1985
• S. 16(5) “a spouse who is granted access to a child of the marriage has the right to make
inquiries, and tobe given information, as to the health, education and welfare of the child”
• (7) “the court may include in an order under this section a term requiring any person who
has custody of a child of the marriage and who intends to change the place of
residence of that child to notify, at least thirty days before the change or within such other
period before the change as the court may specify, any person who is garaunteed acess to
child of the change
(8) “the court shall take into consideration only the best interests of the child of the marriage
as determined by reference to the condition, means, needs, and other circumstances of the
child”
• (9) “In making an order under this section, the court shall not take into consideration the
past conduct of any person unless the conduct is relevant to the ability of that person to act as
a part of a child”
S. 17: VARIATION ORDER
• S. 17(5) of Divorce Act, 1985:
• “Before the court makes a variation order in respect of a parenting order or contact order,
the court shall satisfy itself that there has been a change in the circumstances of the child
since the making of the order”
MOVING ABROAD
• What happens when a divorced parent wants to move their child abroad with them?
• How does this relate to the "best interests of the child”?
• How does this relate to condition, means, needs, and other circumstances of the
child?
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GORDON V. GOERTZ (1996)
• Janet Gordon and Robin Goertz resided in Saskatoon until they separated in 1990
• Janet petitioned for divorce; she was granted permanent custody of their child, and Robin
received generous access
• Janet planned to move to Australia to study orthodontics; Robin then applied for custody, or
an order restraining Janet from moving the child outside of Saskatoon
TRIAL JUDGE
• Trial judge used the divorce judgment and mother as custodial parent to dismiss father’s
application
• Trial judge approved mother’s move to Australia (varied access provisions in custody order)
• Trial judge gave father given generous access with one month’s notice in Australia
• Court of Appeal upheld trial judge’s ruling
MAJORITY OF SCC
• Parent applying for change in custody or access has to demonstrate material change in
circumstances affecting the child
• To meet threshold, must show:
1) change in condition, means, needs or circumstances of child or ability of parents to meet
needs,
2) changes materially affect child, and
3) changes unforeseen or not reasonably contemplated by judge
MAJORITY: BEST INTERESTS OF CHILD
• If threshold concerning change in conditions/needs met, then judge must conduct fresh
inquiry concerning best interests of the child, child’s needs, and ability of parents to
meet child’s needs
• Judge must consider child’s best interest with reference to material change in circumstances
• Does not start with legal presumption favouring custodial parent
• Both parents have evidentiary burden to demonstrate best interests of child
Assessing best interests under the Divorce Act:
a)
custody order and relationship between child and custodial parent,
b)
b) relationship between child and acess parent,
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c)
c) desirability of maximum contact between child and both parents,
d)
d) feelings of child,
e)
e) custodial parent’s reasons for moving where relevant to ability to meet needs of
child,
f)
f) how change in custody would affect child,
g)
g) how removal from family, schools, and community would affect child
APPLICATION IN GORDON V. GOERTZ
• Child had frequent and meaningful contact with access parent
Move to Australia would seriously limit that contact, changing needs and circumstances of
child
• Since previous order was based upon child remaining in/near Saskatoon, moving to
Australia
would breach
• Fresh analysis of best interests of child needed
• Trial judge correct in maintaining mother’s custody of child in Australia, but not in terms of
restricting father’s access to Australia
• Access in Canada would make father’s time with child more natural, allow contact with
friends/family in Canada
• Custody order upheld and access order varied to allow father access in Canada (as well as
Australia)
COMMENTARY: WOMEN’S LEGAL EDUCATION AND ACTION FUND (LEAF)
• LEAF an intervener (non-party that makes legal submissions)
• LEAF a feminist interest group
• LEAF argued that: “mothers must have the right to relocate their children
without the father’s right to convenient access”
• “custodial parent...in the best position to determine the child’s best interests”
FACTORS LEAF URGED SCC TO CONSIDER
• Gender-based division of labour in marriages/relationships
• Women’s post-relationship custody responsibilities
• Impact of women’s marital/relationship roles on ability to
support selves/children after breakdown
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• Challenges single mothers face in providing for selves and children
• Promotion of women’s equality
• LEAF’s summary:
https://www.leaf.ca/case_summary/goertz-v-gordon-1996/ and factum:
https://www.leaf.ca/wp-content/uploads/2020/10/Goertz.pdf
October 18
GORDON V. GOERTZ
• Divorce Act, child custody/access, ‘bests interests of the child’ in Gordon v. Goertz
• Assessing ‘best interests of the child’ under Divorce Act
• Case about moving child to Australia
• SCC’s conclusion: mother allowed to maintain custody and move child to Australia, but
father’s access should be allowed in both Australia and Canada
THIS CASE: F. V. N.
• ‘Best interests of the child’ but:
• In context of abduction of children by mother from Dubai to Ontario, rather than planned
move to Australia
• Claim not under federal Divorce Act (divorce proceedings in Dubai), but by father for
return to Dubai under Ontario’s Children’s Law Reform Act (CLRA)
involves not only
domestic law, but consideration of law of a foreign jurisdiction
(Dubai,
UAE)
• Involves international law considerations
: s. 40 of CLRA
applies to jurisdictions not party
to Hague Convention (protects against illegal adoptions abroad)
• Children
ultimately ordered returned to Dubai
, with or without primary caregiver, rather
than custodial
parent being allowed to move to other country
F. V. N.: FACTS OF DISPUTE
• The parents have 2 children together
• Father: citizen of Pakistan, lived in Dubai
• Mother: citizen of Pakistan and Canada, lived in Pakistan, Ontario, and then Dubai when
married
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• Mother could not reside independently in Dubai, but had been sponsored by her child’s
father throughout marriage
• Mother is
primary caregiver
In 2020, the mother left Dubai to travel to Ontario with the children
• She had return air tickets
• The father agreed to the trip
• After a few weeks in Ontario, she told the father that she was staying in Ontario with the
children
FATHER’S SETTLEMENT OFFER
• Father purchased property in mother’s name to aid in her independent residency in Dubai
• Agreed that the children could live primarily with the mother, and that they would make
major decisions about the children together
Father’s claim: sought an order under s. 40 of CLRA for children to be returned to Dubai
• S. 40 of CLRA:
if child is wrongfully removed or retained in Ontario, court may order party
to return child
Mother’s claim: under s. 23 of CLRA, Ontario should have jurisdiction to decide child
custody/access,
children would suffer serious harm
they were returned tto Dubai, and bests
interests = remaining in Ontario
with her
• S. 23 of CLRA: court can use jurisdiction to make/vary parenting or contact order if the
child is “physically present” in Ontario, and child would suffer serious harm if child is
removed from Ontario
TRIAL JUDGE
•
Declined jurisdiction to make parenting/contact order
• Was not satisfied, on balance of probabilities, that children
would suffer ‘serious
harm’ if
removed from Ontario back to Dubai
• Mother had ‘
wrongfully retained’
children in Ontario
• Best interests of children =
return to Dubai, with or without mother
• Parties could make submissions about whether to include father’s settlement offer in order,
but mother did not take opportunity
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MAJORITY OF SCC
Majority of SCC (overall):
• Trial judge didn’t make an error
• Defer to trial judge’s decision about not meeting
‘serious harm’
threshold under s. 23 of
FLRA
• Custody dispute should be settled in Dubai
• Why? • CLRA discourages child abductions
• ‘Best interests’ of children = return to jurisdiction where they formerly resided
• Except in exceptional
circumstances, courts will not exercise jurisdiction, and instead return
child to foreign jurisdiction to which child is closely connected
S. 23, ONUS, AND SERIOUS HARM INQUIRY
• S. 23 has an exception: when child physically present in Ontario and would suffer serious
harm if removed
• Onus under s. 23 of CLRA: on abducting parent
• Serious harm inquiry is child-centred and individualized: consider age, special needs,
likelihood and severity of probable harm
• Trial judge’s findings owed deference
SERIOUS HARM AND PRIMARY CAREGIVER
• Separation from primary caregiver
does not necessarily meet threshold of serious harm
• For example: would not meet threshold if returned to capable partner and other familiar
caregivers
• Parent cannot simply create the serious harm by refusal to return; courts need to consider
whether can return, refusing to return, and if refusing
whether there are good reasons (issues
with safety, employment, child/spousal abuse)
• Otherwise, Ontario could be a
‘haven’
for child haven means asylyum
Possibility that foreign jurisdiction’s family law so irreconcilable with Ontario’s that this
would amount to serious harm
• But if using ‘
best interests of child
,’ then usually not serious harm
S. 40 RETURN ORDER AND ‘BEST INTERESTS’
• Courts to think about ‘best interests of the child’ when making return orders
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• Best interests usually =
return to habitual
place of residence
• Courts need to be satisfied that undertakings by parties within s. 40 return order are
Adequate.
APPLICATION TO CASE: REMOVAL
FROM PRIMARY CAREGIVER = SERIOUS
HARM?
• Trial judge = no palpable or overriding error re: lack of serious harm returning to Dubai
• Emotional distress of removal from primary caregiver does not rise to ‘serious harm’ in this
case
• Mother did not want to live in Dubai
• But best interests of children =
return to Dubai, even if without mother
APPLICATION: FOREIGN JURISDICTION’S LAW = SERIOUS HARM?
• Are parenting decisions in courts in Dubai, UAE made according to ‘best interests’ of
children?
• Trial judge aware of some conflict with best interests of the child and gender equality in
Ontario family law
• Using
expert witness evidence, determines that courts determine custody/access on best
interests of the child
APPLICATION:
• In making return order under s. 40 of CLRA, trial judge considered father’s settlement offer
to give her independent residency status to return to Dubai with the children if she wanted to
• Settlement offer = protective measures, and furthered best interests of the children
• Undertakings (settlement offer) = adequate in trial judge’s view
• Trial judge
should have been explicit about these undertakings in order given best interests
of the child under s. 40
• Majority indicates that father bound by undertakings
DISSENTING OPINION
• Agrees with legal principles, but not application to case
• Dissenting judges’ application to case: return to Dubai = serious
harm to children
; return
to Ontario judge to make parenting order
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CLRA
• While objective = preventing child abduction, sometimes objective yields to more important
objective: preventing serious harm (s. 23 of CLRA)
• Generally appellate deference (where appeal courts listen to findings by trial judges)
• But appeal court can intervene in cases of material error, “serious misapprehension” of
evidence, legal error
ERRORS BY TRIAL JUDGE
Material errors
(opposite: accurate information):
• Misapprehension of evidence concerning likelihood of
serious harm to children if
returned to Dubai
• Judge provided little weight to mother’s
claim she wouldn’t return to Dubai
= tainted
conclusion about likelihood of anticipated harm
• Cannot claim self-engineered harm when parent has justifiable reasons not to return (for
example:
precarious residency status, reasons to refuse father’s settlement offer, issues with
living under UAE laws as woman, connections to
Canada)
ERRORS CONTINUED
• Misapprehension of evidence re: severity of harm to children
•
Jurisprudence and expert evidence re: serious emotional and psychological harm upon
separation from primary caregiver but not applied to children’s particular circumstances
under s. 23 analysis
• Trial judge
improperly concluded that children would not suffer
serious harm
• Not clear how alternate caregivers would offset loss of primary caregiver
TANVEER: TRICKY BALANCING
• SCC must balance:
• Best
interests of children with preventing parental abduction haven
• Assessing ability of foreign jurisdiction to meet children’s needs with best interests of child
principle
• Majority and dissenting judges disagreed on
correct balance in application to facts of case
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TANVEER: DISSENT
• Justifiable reasons for mother to not return: “precarious position under the UAE’s gendered
laws” (for example
, required husband’s permission to get driver’s l
icence), family ties in
Ontario
• Negative effects of removal from primary caregiver: alternative caregivers nanny or
relatives who had little previous contact with children
•
Mother had to return to Dubai, where she didn’t feel comfortable living, or lose custody
October 20
B.J.T. V. J.D.
Alleged history of domestic violence by father toward mother
• Mother left Alberta for PEI while pregnant, without informing father of pregnancy
• In PEI, maternal grandmother cared for and financially provided for child for years
• Mother struggled with mental health and eventually removed grandmother from their lives
FACTS: CHILD PROTECTION
• The child, while under the mother’s care, was taken by the Director of Child Protection, and
was given temporary custody
• The Director struck a foster parenting agreement with the grandmother and placed the child
in her care
• The Director then informed the father about his child, and allowed unsupervised visits with
the child
The grandmother informed the
Director concerning allegations of domestic violence
• The Director allowed continued visits by father, and supported his bid for permanent
custody
• The grandmother filed a motion under PEI’s Child Protection Act to be a “
parent,
” and this
was granted
FACTS: BOTH SEEKING CUSTODY
• The Director then ended the foster parenting agreement with the grandmother, removed
the child, and placed the
child with foster parents
• About a month later, the Director sent the child for an indefinite visit with the father
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(still living in Alberta)
• Both the grandmother and father seek permanent custody
CHILD WELFARE AND BEST INTERESTS OF THE CHILD
• “Best interests for the child” is guiding principle concerning custody and
under Child
Protection Act (s. 2(2))
• Appellate courts should usually follow hearing judge’s determination about best interests of
child
• When can appellate court overturn judge’s conclusion?
• Material error, misapprehension of evidence, error in law
HEARING JUDGE
• In this case, the hearing judge ruled that the bestinterests of the child would be best
protected by
granting custody to the grandmother
• Grandmother would work to ensure relationship with father and his family
; father
wouldn’t do so unless court ordered
• Director was
working toward goal of father being parent, not grandmother being
guardian
COURT OF APPEAL
•
Reversed decision of trial judge
• Granted
custody to father
• Consideration of Director’s conduct irrelevant
• Argued that
father should be favoured as natural parent
SCC’S RULING
• Court of Appeal shouldn’t have reversed hearing judge and provided custody to father;
should have deferred
• Hearing judge’s assessment of best interests of the child based upon evidence
• Lack of material error, misapprehension of evidence, or error in law
CONSIDERING DIRECTOR’S CONDUCT
• Hearing judge’s analysis of
Director’s conduct did not taint analysis
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• Judges should analyze how child protective agencies come to suggestions
re: fitness of
parents
• Relevant for hearing judge to consider how Director’s
actions favoured father over
existing relationship with grandmother
RE)CONSIDERING THE NATURAL PARENT PRESUMPTION
• Biological tie should be given minimal weight in
assessment
• ‘Natural parent
presumption’
not a tie breaker
• Best of interests of child > natural parent presumption
• Child’s bond not linked simply to biological tie
• Preferring one biological tie over other without evidence unwise
•
Biological tie not in Child Protection
Act
• Proper for judge to decide based on which more likely to maintain child’s relationship with
other
ASSOCIATION DE MÉDIATION
FACTS IN BOUVIER
• Couple were de facto
spouses with 2 children
• With relationship breakdown, sought mediation to settle child custody and support
• Mediator reported conclusions in ‘
summary of mediated agreements’
• Isabelle (I)
later sought more support than mediator concluded in court
• Michel (M) said mediation summary = contract
• I denied, and said that summary should be confidential
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Trial judge said that summary should be included in evidence based upon exception to
settlement privilege set
out in Union Carbide Canada Inc. v
. Bombardier Inc. (commercial
mediation)
• Exception: protected communication can be revealed if proves existence/terms of settlement
• Trial judge ruled that there was a contract
between I and M
• For example
: M sent I cheques following mediation that I cashed based upon agreement;
emails to that effect
COURT OF APPEAL IN BOUVIER
• Dismissed appeal of trial judge’s ruling
• I didn’t appeal, but Association de mediation familiale du Québec did
SCC MAJORITY’S DECISION IN BOUVIER
• Settlement exception applies; should not depart from rule in
Union Carbide
• Where no settlement, confidentiality of mediation communications necessary
• But rejecting exception in
Union Carbide would be at odds of objective of family
mediation: reaching an
agreement
• Mediation aids with access to
justice in family law context
SCC’S MAJORITY
• Family law mediation differs from
other types of mediation by
excluding legal advisers
• No requirement for me
diation to end in binding contract
• Various procedural safeguards in Civil Code of Quebec to ensure parties not unknowingly
bound to bad contract
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• Settlement privilege is a rule of evidence (
and codified in s. 4 of Code of Civil Procedure)
that applies to
communications leading up to settlement
CONCLUSION BY MAJORITY
• Exception to settlement privilege
• Circumstances: prove
existence and scope of settlement
• Purpose: promote settlements
• Examine intention of parties, nature of contract, circumstances of forming, usage
• Summary of mediated agreement was an agreement of wills that formed a true agreement
based upon terms
23 October 23, 2023
Torts
TORTS, A TYPE OF PRIVATE LAW
• Private law governs relationships and disputes between private actors
(individuals, groups,
corporations)
• Private interests
• For example:
family law, contract law, torts, and property law
• Rules surrounding an intentional or unintentional legal wrong against a person, property, or
reputation that entitles the injured party to a remedy
• “remedying of private wrongs”
• Liability for damage
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PUBLIC V. PRIVATE WRONGS
• Crime as a public wrong
• Tort as
private wrong
• Assault both a crime and a tort
• Can be charged under Criminal Code for assault
• But victim can also seek private liability by pursuing civil claim and damages for tort of
assault
CRIMINAL LAW: BROADER PURPOSES
•
Criminal law has broader purposes than tort law
• For example: general (for general public) and specific (for individual offenders) deterrence;
rehabilitation of offenders (further discussed as sentencing principles in criminal law unit)
• Criminal liability: guilty beyond a reasonable doubt
• Actus reus (guilty act) AND mens rea (guilty mind)
TORT LAW: INTENTIONAL OR UNINTENTIONAL
• Compensate for private wrongs
• Intentional torts: “
intentional infliction of mental or physical harm to persons or property”
• Unintentional torts (in negligence): “failure of an individual or an organization to conform
to a standard of reasonable care”
• Tort liability: based upon balance of probabilities
• In case of
unintentional torts/negligence, no requirement for ‘guilty mind
BUT SOME FURTHER BLURRING BETWEEN CRIMINAL AND TORT LAW
• Provinces have established criminal injury compensation boards or tribunals
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• Compensation to victims of violent crime from the state
• Federal Criminal Code also sets out certain types of criminal negligence
• For example: criminal negligence causing death
• Then there are non-criminal
forms of negligence under tort law
INTENTIONAL TORTS
• Intentional conduct
• For example:
assault and battery, false imprisonment, malicious prosecution, fraud,
trespassing, defamation, and intentional infliction of mental harm
•
What is the standard of liability in intentional torts, compared to unintentional torts
(negligence) or criminal cases?
TORTS
• Standard of liability:
intended harm
• Plaintiff to establish that defendant intended to cause injury
• Whether d
efendant wanted to cause consequences resulting from act or consequences
certain to result from act
•
Defences: consent, self-defence, defence of property, necessity, and legal authority
NEGLIGANCE
Standard of liability:
standard of care expected of reasonable person in position
• Establish duty of care (duty), breach of standard of care expected of reasonable person in
position (breach), breach caused injury (cause), damages suffered from injury
(damage)
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•
Defences: contributory negligence, accident, voluntary participation, and voluntary
assumption of risk
COMPENSATION: ISSUES
• Tort law compensates relatively
few victims
• Victims must
make financial investment (for example, lawyers
) to initiate process
• Victims must prove fault, not need for compensation
• Victim will only be able to recover compensation if person who caused damages (tortfeasor)
has financial capacity to compensate
ISSUE WITH EFFICENCY OF TORT LAW
VICARIOUS LIABILITY
• Liability of employer or principal of tortfeasor on the ground that, as person responsible for
activity or enterprise, employer or principal should be liable for damages
that are caused by
activity or enterprise
• For example: in John Doe v. Bennett, the trial judge found St. George’s (bishops in charge
of Bennett) vicariously liable for sexual assaults by Father Bennett
VICARIOUS LIABILITY AND SUFFICIENT CONNECTION
Depends upon employer’s control over employee’s activities:
• Opportunity enterprise gave employee to abuse power
• Extent to which wrongful act would have furthered employer’s objectives
• Extent to which wrongful act relation to confrontation or intimacy in employer’s enterprise
• Power given to employee in relation to victim
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• Vulnerability of potential victims to “wrongful exercise of... employee’s power
APPLICATION TO JOHN DOE V. BENNETT
• Bishop gave Bennett
opportunity to abuse power
• Bennett’s wrongful acts related to
psychological intimacy in role as priest
• Bishop gave a lot of power to Bennett relative to victims
SOCIAL HOST LIABILITY
•
Should the host of a party be held liable after hosting a BYOB party in which a guest
consumes their own alcohol, decides to drive, and then gets into a car accident resulting
in death and serious injury to the passengers in another vehicle?
Childs v. Desormeaux
• Childs, who was teenage passenger in the other vehicle who was paralyzed during the
car accident, sued the impaired driver (Mr. Desormeaux) and the hosts (Courier and
Zimmerman)
Chief Justice McLachlin for
SCC found no liability on the social ho
st: “
A social host at a
party where alcohol is served is not under a duty of care to members of the public who
may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the
creation or exacerbation of risk”
October 25
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CROOKES V. NEWTON: FACTS
• Newton (N) runs a website out
of B.C. that publishes articles
• Crookes (C) sued N for publishing an
article that contained hyperlinks to other websites
that had in
formation about C
• C alleges that the information contained in the hyperlinked articles is defamatory, and that
by including these hyperlinks, N had published
information that defames C.
Scc majority
Does posting an article with an allegedly defamatory hyperlink constitute publication,
and consequently, defamation?
• C’s claim was
not successful
•
N did not defame C
because inserting a hyperlink does not constitute publication of
defamatory information
CROOKES V. NEWTON: SCC ON TRADITIONAL PUBLICATION RULE
• Plaintiff must prove that defendant
has published defamatory material
• ‘Publication’ means that the defendant has
“by any act, conveyed defamatory meaning to
a single third party who has received it”
• The traditional publication rule holds that the way in which the
defendant helps spread
defamatory information to the third party does not matter
ROOKES V. NEWTON: DIVERGING FROM THE TRADITIONAL PUBLICATION
RULE
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• Majority holds that it is inappropriate to apply the traditional publication rule to hyperlinks
because it
would inhibit freedom of expression and spread of info on the Internet
• Hyperlinks are references that indicate material exists
• A reference to an article with defamatory information does not constitute publication;
publication would require repetition of the defamatory information
HYPERLINKS: NOT PUBLICATION
• Hyperlinked
reference to secondary material that contains defamatory info differs from
publication
; hyperlinker does not control secondary material
• Defamatory
info was available regardless of the hyperlinker’s reference to it;
hyperlinker has no control over content in secondary material
• Hyperlink is not considered ‘publication’ of info contained in hyperlink
SEEKING REMEDIES FROM CREATOR OF CONTENT
• Person who posted defamatory information found in the secondary material of the hyperlink
is
responsible for publication of the libel
• Libel = written defamation; slander = spoken defamation
• Plaintiffs in
defamation cases still able to seek remedies for publication of defamatory info
from person who created the content
, as it is that person who did damage to plaintiff’s
reputation
CROOKES V. NEWTON: OVERALL CONCLUSION
• C does not allege that the information on
N’s page itself is defamatory
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•
Hyperlink does not constitute publication
even if the hyperlink is clicked, and
defamatory information viewed
•
N did not publish the defamatory information
• C’s claim
against N can therefore not succeed
HANSMAN
V. NEUFELD: FACTS
• Neufeld (N), a public school board trustee in Chilliwack, BC,
posted online criticizing
provincial curriculum for educators to teach students about gender identity
and sexual
orientation
• The trustee’s
comments were largely considered discriminatory towards 2SLGBTQIA+
communities
Hansman (H), a gay teacher and former president
of a teacher’s union, made statements to
the
media criticizing N’s posts
-
Bigoted,
hateful, discriminatory; undermined inclusivity for
2SLGBTQIA+ students, questioned whether appropriate for him to be a trustee
• N (the trustee) sued H for defamation
• H sought to have the defamation action dismissed, suggesting it was a “
SLAPP” (strategic
lawsuit against public participation)
• S. 4 of BC’s Protection of Public Participation Act (PPPA) seeks to discourage SLAPPs
(anti-
SLAPP legislation)
MAJORITY OF SCC:
DISMISSING SLAPPS UNDER THE PPPA
• S. 4 of PPPA establishes pretrial screening mechanism for judges to dismiss defamation
actions
relating to expression concerning public interest unless plaintiff can
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demonstrate:
• Their action has substantial merit; the defendant
has no valid defence
(s. 4(2)(a)(i) and
(ii)); the harm to
the plaintiff is serious enough to outweigh the public interest
protecting
the expression (s. 4(2)(b))
• Onus on
plaintiff (alleging defamation)
under s. 4(2), and judge
to dismiss if plaintiff
doesn’t meet
Decision
LACK OF EVIDENCE FROM N ON HARM
• Majority of SCC
concluded that N did not provide evidence on harm and damage
suffered from H’s statements
• Harm to
be caused by defendant’s statements, not plaintiff’s inability to sue
PROTECTING EXPRESSION
• If expression related to core values of s. 2(b) of Charter (freedom of expression), such as
truth- seeking, participating in political decisions, and self- fulfillment
, greater public interest
in protecting expression
•
Public interest in countering harmful expression
• Counter-speech seeks to address harmful expression, and is clearly close to the core values
under s. 2(b)
PROTECTING EQUALITY
• Also engages core values
under s. 15 (equality
) by defending marginalized/vulnerable
group;
emphasizes importance of protecting counter- speech
• H’s counter-speech meant to protect marginalized group: to address discriminatory
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and damaging expression toward 2SLGBTQIA+ communities, and especially transgender
youth
PROTECTING HANSMAN’S COUNTER- SPEECH
• H’s counter-
speech close to s. 2(b)’s core: truth-seeking, and countering speech
undermining equal worth of marginalized groups
• Subject matter of expression deserving of protection: value of government initiative,
inclusiveness of schools,
considering fitness of candidate for public office
• Form and motivation: in media for counter-perspective in debate, and to combat
discriminatory expression
•
Public interest in protecting
expression by H
more important than remedying harm to N
FAIR COMMENT DEFENCE
• N also failed in challenging validit
y of fair comment defence
• Fair comment defence:
citizens to be able to express opinions on matters of public interest
without actions for defamation
• 5 elements: comments on
matter of public interest; based on fact; recognized as
comment; objective test (honestly express opinion on proved facts); not based upon
express malice
• Assess alleged defamatory expression in full context of use
APPLICATION OF FAIR COMMENT DEFENCE TO H
• Matter of public interest
• N’s posts provided
required factual basis for H’s statements that
posts were bigoted
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• N’s statements notorious and likely known to reading audience; H’s statements would be
understood as comment by readers
• H had subjective honest belief in views
• Not based in malic
WEST COAST LEAF (WOMEN’S LEGAL EDUCATION AND ACTION FUND)
• Neither BC Supreme Court (chambers judge) or BC Court of Appeal “considered the
possibility that Mr. Neufeld’s claim could provoke
hostility against 2SLGBTQQIA
+
children and youth by silencing or intimidating them and their allies”
• West Coast LEAF’s suggestion:
analytical framework of finding that expression might
provoke hostility against vulnerable group
SCC’s ruling “an important step to ensuring that those who push back against anti-
2SLGBTQQIA+ speech are not silenced”
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