Charter Claims 101

 

Charter Claims 101

This presentation is a basic introduction to some Charter claims and remedies (Canadian Charter of Rights and Freedoms enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (Charter)).

1  Introduction to Charter analysis

A.   The categories of Charter rights

o      There are six broad categories of Charter rights:

1.     Fundamental Freedoms (Section 2);

2.     Democratic Rights (Sections 3-5);

3.     Mobility Rights (Section 6);

4.     Legal Rights (particularly pertaining to the criminal process) (Sections 7-14);

5.     Equality Rights (Section 15); and

6.     Language Rights (Sections 16-23).

o      Consider if the claimant has private standing or public interest standing to bring a specific Charter claim.

o      A claimant must plead all the elements of the alleged Charter breach and the remedy sought.

o      Nova Scotia v Martin, [2003] 2 S.C.R. 504, para 29: The Supreme Court of Canada (SCC) determined that in order for the Charter to be meaningful, claimants are "entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available". Therefore, administrative tribunals can apply the Charter.

B.   The Charter applies to government action

o      Section 32 of the Charter provides that it applies to "Parliament and government of Canada" and to the "legislatures and governments of the provinces". Therefore, the Charter applies to government action as opposed to private action.

C.   Charter analysis must be purposive and contextual

o      Purposive — R v Big M Drug Mart, [1985] 1 S.C.R. 295, para 117: The purposive method is aimed at "securing for individuals the full benefit of the Charter protection."

o      Contextual — British Columbia (Attorney General) v Christie, 2007 SCC 21, paras 14 and 28: There was no evidence to demonstrate that the 7% provincial tax would adversely affect access to justice. The SCC reminds us that Charter analysis can only be made on a full evidentiary record.

D.   The Charter generally does not have extra-territorial application

o      R v Hape, 2007 SCC 26: Canadian laws generally do not apply outside Canada unless: (1) Another state consents to their application on their territory; or (2) There is an exception under international law.

o      See also Canada (Justice) v Khadr, 2008 SCC 28.

2 Section 2 - Fundamental freedoms

Section 2 of the Charter reads that:
Everyone has the following fundamental freedoms:

• freedom of conscience and religion;
• freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
• freedom of peaceful assembly; and
• freedom of association.

Section 2(a) - Freedom of religion

• Leading case: R v Big M Drug Mart, [1985] 1 S.C.R. 295.

Section 2(b) - Freedom of expression

• Section 2(b) is the most frequently litigated aspect of Section 2. Freedom of expression is inherent to democracy.
• Leading case: Irwin Toy Ltd. v Québec (Procureur Général), [1989] 1 S.C.R. 927.
• Test: (1) Does the activity or expression fall within the meaning of Section 2(b)? If yes, then (2) Does the government action restrict the freedom of expression?
• Canada (Attorney General) v JTI-Macdonald Corp., 2007 SCC 30: The Tobacco Products Information Regulations required that health warnings occupy at least 50% of cigarette packaging. The SCC determined that these regulations infringed Section 2(b), but that this infringement was justified under Section 1 of the Charter as the goal of reminding us that smoking is a health hazard is a pressing and substantial one.
• See also R v Bryan, 2007 SCC 12; Baier v Alberta, 2007 SCC 31.

3 Section 7 - Right to life, liberty and security of the person

Section 7 reads that:
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.

• Section 7 has had significant impact in criminal and non-criminal contexts. Section 7 is the backbone of rights found at Sections 8-14.
• Test: (1) Has there been a deprivation to the right to life, liberty and security of the person? If yes, then (2) Is that deprivation contrary to principles of fundamental justice?
• R v D.B., 2008 SCC 25: Young people are entitled to a presumption of diminished moral blameworthiness and cannot automatically be presumed to attract an adult sentence.
• A principle of fundamental justice is: (1) A legal principle; (2) Is fundamental to the way in which the legal system ought fairly to operate; and (3) Must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
• In the criminal context, examples of rights protected under Section 7 include the right to silence, the right against self-incrimination and the right to disclosure of the prosecution's case.
• In the non-criminal context, examples of interests protected under Section 7 include the right to control one's body and the prohibition against deportation to death or torture. Section 7 is of very limited application in the context of economic and commercial entitlements.
• Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9: The SCC held that the security certificate process, which prohibited the examination of evidence used to issue the security certificate, violated Sections 7, 9, and 10(c) of the Charter.
• Khadr v Canada, 2008 SCC 28: The SCC determined that Khadr was entitled to the disclosure of records, pursuant to Section 7 of the Charter, of interviews conducted by Canadian officials and shared with United States US authorities while he was detained in Guantanamo Bay by US forces.
• Canada (Prime Minister) v Khadr, 2010 SCC 3: Canada violated Khadr's Section 7 rights by contributing to his detention.
• Chaoulli v Quebec (Attorney General), 2005 SCC 35: Health insurance for private health services was prohibited by law if these services were available in the public healthcare system. The SCC decided that long waiting lists for public healthcare caused psychological and physical suffering, which violated the security of the person.

4 Section 8 - Search and seizure

Section 8 of the Charter reads that:
Everyone has the right to be secure against unreasonable search and seizure.

• Leading case: Hunter v Southam Inc., [1984] 2 S.C.R. 145.
• Test: (1) Does the accused have a reasonable expectation of privacy? If yes, then (2) Was the police search conducted in a reasonable manner?
• The Courts attempt to balance an individual's right to privacy and the government's interests, particularly in law enforcement.
• R v. Kang–Brown, 2008 SCC 18: The accused got off a bus and the RCMP officer asked him if he had any drugs. The accused said no and the officer asked him to open his bag. The sniffer dog came and sat down, indicating the presence of drugs. The accused was searched and drugs were found on his person and in his bag. The use of a sniffer dog constitutes a search within the meaning of Section 8 of the Charter, and absent a justified authority for the search in statute or at common law, the search breached Section 8. Evidence was excluded under Section 24(2) of the Charter.
• See also R v A.M., 2008, SCC 19 (sniffer dogs in schools); R v Clayton, 2007 SCC 32; R v Cornell, 2010 SCC 31.

5 Section 10(b) - Right to counsel

Section 10(b) of the Charter reads that:
Everyone has the right on arrest or detention
b) to retain and instruct counsel without delay and to be informed of that right;

• Leading case: R v Bartle, [1994] 3 S.C.R. 173.
• Test: The SCC held that Section 10(b) places three duties on authorities who detain:
1. To inform the detainee of the right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
2. If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right to counsel; and
3. To refrain from eliciting evidence from the detainee until reasonable opportunity is given to speak with counsel.
• If the police fail to observe the duties imposed by Section 10(b), any evidence that was obtained in violation of this section may inadmissible pursuant to Section 24(2) of the Charter.
• See also R v Sinclair, 2010 SCC 35; R v McCrimmon, 2010 SCC 36: Section 10(b) of the Charter does not require the presence of defence counsel during a custodial interrogation.

6 Section 12 - Cruel and unusual treatment and punishment

Section 12 of the Charter reads that:
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

• Leading case: R v Goltz, [1991] 3 S.C.R. 485.
• Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3: Torture is so repugnant that it could never be appropriate punishment, whatever the offense.
• R v Ferguson, 2008 SCC 6: An RCMP officer shot and killed a detainee and was convicted of manslaughter. Notwithstanding the mandatory minimum sentence of four years imposed by the Criminal Code, the judge imposed a sentence of two years less a day. The judge granted the accused a constitutional exemption from the four-year sentence because he found that the minimum mandatory sentence constituted cruel and unusual punishment in violation of Section 12 of the Charter. The SCC held that there was no reason for concluding that the four-year minimum sentence amounts to cruel and unusual punishment.

7 Section 15 - Equality rights

Section 15 of the Charter reads that:
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.
(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.

• Leading case: Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, para 88.
• Test: (1) Has there been differential treatment? If yes, then (2) Is the differential treatment based on an enumerated or analogous ground? and (3) Is there discrimination?
• Examples of analogous grounds can include marital status and sexual orientation.
• R. v Kapp, 2008 SCC 41, para 16: There are two ways of combating discrimination: (1) Section 15(1) prevents discriminatory distinctions that impact adversely on members of groups identified by Section 15 (1); and (2) Section 15(2) preserves the right of government to implement programs to help disadvantaged groups also known as affirmative actions programs.
• Canada (Attorney General) v Hislop, 2007 SCC 10: The SCC struck down provisions in the Canada Pension Plan on grounds that it discriminated against same-sex couples. Estates cannot enforce Section 15 rights as these are personal rights.

8 Section 16-23 - Language rights

• These sections entrench English and French as official languages in Canada.
• Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v Canada, 2008 SCC 15: The RCMP acts as a provincial police force in New Brunswick. The issue was whether the RCMP is required to fulfil the language obligations imposed on New Brunswick by Section 20(2) of the Charter. The SCC determined that this section requires the RCMP to provide services in both official languages when acting as a provincial police force in New Brunswick.

9 Section 1 - Limitation to Charter rights

Section 1 of the Charter reads that:
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.

• Leading case: R v Oakes, [1986] 1 S.C.R. 103: The SCC determined that there was a violation of the presumption of innocence when the accused was presumed to traffic drugs if he possessed them, and there was no justification for this limitation under Section 1 of the Charter.
• Oakes sets out the test for establishing that a limit is demonstrably justified in a free and democratic society.
• Test: (1) Does the law or government action limit or violate a Charter right? If yes, then (2) The Crown must show that this limitation or violation is justified under Section 1 of the Charter: (i) There must be a sufficiently important objective to warrant overriding a Charter right; (ii) There must be a rational connection between the limit on the Charter right and the objective: (iii) The limit should impair the Charter right as little as possible (minimal impairment); and (iv) There should be a balance between the benefits of the limit and its deleterious effects.

10 Charter remedies

• Read Section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and Section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7: A claimant may need to serve the government with a Notice of Constitutional Question.
• A challenge to a law is brought pursuant to Section 52 of the Constitutional Act, 1982, on the basis that a law is inconsistent with the Charter. If the Court finds that a law violates the Charter, it can declare it invalid. Additional relief may flow such as the recovery of money paid under an unconstitutional statute.
• A challenge to a government's action is brought pursuant to Section 24(1) of the Charter on the basis that the action violates the Charter. A Section 24(1) claim can be invoked by the party alleging the violation of rights. Section 24(1) remedies can include a declaration of breach, an injunction or damages.
• City of Vancouver v Ward, 2010 SCC 27: (1) The claimant establishes that a Charter right has been breached; (2) The claimant demonstrates that damages are a just and appropriate remedy (compensation, deterrence for future breaches); (3) Government demonstrates that countervailing factors defeat the considerations that support a damage award and render damages inappropriate or unjust; (4) If necessary, the Court assesses the quantum of damages.
• Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62: Section 24(1) is "responsive to the needs of a given case" and "novel remedies" may be required. A Section 24(1) remedy can include informing the judge of construction progress.
• Hislop, paras 78-163: It may be appropriate to limit the retroactive effect of Charter remedies.

11 Index of caselaw from the Supreme Court of Canada

1. Baier v Alberta, 2007 SCC 31.
2. British Columbia (Attorney General) v Christie, 2007 SCC 21.
3. Canada (Attorney General) v Hislop, 2007 SCC 10.
4. Canada (Attorney General) v JTI-Macdonald Corp., 2007 SCC 30.
5. Canada (Justice) v Khadr, 2008 SCC 28.
6. Canada (Prime Minister) v Khadr, 2010 SCC 3.
7. Chaoulli v Quebec (Attorney General), 2005 SCC 35.
8. Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9.
9. City of Vancouver v Ward, 2010 SCC 27.
10. Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62.
11. Hunter v Southam Inc., [1984] 2 S.C.R. 145.
12. Irwin Toy Ltd. v Québec (Procureur Général), [1989] 1 S.C.R. 927.
13. Khadr v Canada, 2008 SCC 28.
14. Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
15. Nova Scotia v Martin, [2003] 2 S.C.R. 504.
16. R v A.M., 2008 SCC 19.
17. R v Bartle, [1994] 3 S.C.R. 173.
18. R v Big M Drug Mart, [1985] 1 S.C.R. 295.
19. R v Bryan, 2007 SCC 12.
20. R v Clayton, 2007 SCC 32.
21. R v Cornell, 2010 SCC 31.
22. R v D.B., 2008 SCC 25.
23. R v Ferguson, 2008 SCC 6.
24. R v Goltz, [1991] 3 S.C.R. 485.
25. R v Hape, 2007 SCC 26.
26. R v Kang?Brown, 2008 SCC 18.
27. R v Kapp, 2008 SCC 41.
28. R v McCrimmon, 2010 SCC 36.
29. R v Oakes, [1986] 1 S.C.R. 103.
30. R v Sinclair, 2010 SCC 35.
31. Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v Canada, 2008 SCC 15.
32. Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.