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11 CONSTITUTIONAL LAW 32 Framework of the Charter Analysis Shigenori Matsui.

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1 11 CONSTITUTIONAL LAW 32 Framework of the Charter Analysis Shigenori Matsui

2 22 INTRODUCTION What is the framework of analysis when the party challenges the infringement of the Charter rights and freedoms? What kind of interpretive approach should be adopted to interpret the Charter provision? How should the courts review the constitutionality of infringement?

3 3 1 Interpreting the Charter The necessity of purposive interpretive approach Hunter v. Southam [1984]

4 4 “The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and… for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. ”

5 5 R. v. Big M Drug Mart [1985]

6 6 “This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.”

7 7 “In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection.”

8 8 Is the purposive interpretation the same as generous interpretation?

9 9 Scope of protection and limitation

10 10 The originalists and non-originalists

11 11 Legitimacy of judicial review Reference re B.C. Motor Vehicle Act [1985]

12 12 “This is an argument which was heard countless times prior to the entrenchment of the Charter but which has in truth, for better or for worse, been settled by the very coming into force of the Constitution Act, 1982. It ought not to be forgotten that the historic decision to entrench the Charter in our Constitution was taken not by the courts but by the elected representatives of the people of Canada. It was those representatives who extended the scope of constitutional adjudication and entrusted the courts with this new and onerous responsibility. Adjudication under the Charter must be approached free of any lingering doubts as to its legitimacy.”

13 13 II Justifying the Limitation The Supreme Court of Canada has developed the two-steps constitutional framework; first, it must be asked whether a particular right or freedom is infringed, and second, it must be asked whether the infringement can be justified under s. 1.

14 14 S. 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” “prescribed by law” “reasonable limits” “as can be demonstrably justified in a free and democratic society”

15 15 A. “prescribed by law”

16 16 R. v. Therens [1985]

17 17 R. v. Nova Scotia Pharmaceutical Society [1992]

18 18 “Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague. It can also be raised under s. 1 of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that a limitation on Charter rights be "prescribed by law". Furthermore, vagueness is also relevant to the "minimal impairment" stage of the Oakes test ”

19 19 The "doctrine of vagueness" is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion … 3.Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretative role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist…

20 20 “The Court will be reluctant to find a disposition so vague as not to qualify as "law" under s. 1 in limine, and will rather consider the scope of the disposition under the "minimal impairment" test..”.

21 21 “A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion. Such a provision is not intelligible, to use the terminology of previous decisions of this Court, and therefore it fails to give sufficient indications that could fuel a legal debate. It offers no grasp to the judiciary.”

22 22 The Supreme Court of Canada has not developed the comprehensive jurisprudence on the meaning of the word “prescribed by law” Compare with Sunday Times v. United Kingdom (1979) of the European Court of Human Rights

23 23 “In the Court's opinion, the following are two of the requirements that flow from the expression "prescribed by law". Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”

24 24 Osborne v. Canada [1991]

25 25 “Vagueness can have constitutional significance in at least two ways in a s. 1 analysis. A law may be so uncertain as to be incapable of being interpreted so as to constitute any restraint on governmental power. The uncertainty may arise either from the generality of the discretion conferred on the donee of the power or from the use of language that is so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools. In these circumstances, there is no "limit prescribed by law" and no s. 1 analysis is necessary as the threshold requirement for its application is not met.”

26 26 “The second way in which vagueness can play a constitutional role is in the analysis of s. 1. A law which passes the threshold test may, nevertheless, by reason of its imprecision, not qualify as a reasonable limit. Generality and imprecision of language may fail to confine the invasion of a [page95] Charter right within reasonable limits. In this sense vagueness is an aspect of overbreadth. This Court has shown a reluctance to disentitle a law to s. 1 scrutiny on the basis of vagueness which results in the granting of wide discretionary powers.”

27 27 B. Justification R. v. Oak [1986]

28 28 “A second contextual element of interpretation of s. 1 is provided by the words "free and democratic society". Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. ”

29 29 “The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. The standard of proof under s. 1 is the civil standard, namely, proof by a preponderance of probability.”

30 30 “To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom“… It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.”

31 31 “Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test…"

32 32 “There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question… Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

33 33 “Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.”

34 34 III Further Elaboration of the Oak Analysis A. the necessity of contextual analysis First suggested by Wilson, J., in Edmonton Journal v. Alberta [1989]

35 35 “One virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1.”

36 36 The Supreme Court of Canada came to emphasize the contextual analysis more often. R. v. Lucas [1998], Cory, J. for the majority

37 37 “This Court has stressed the importance of a contextual approach in determining the appropriate balance between individual rights and state interests under s. 1. See Edmonton Journal, supra, at pp. 1355 ‑ 56. It follows that when freedom of expression is at issue, the nature of the s. 2(b) violation must be considered in determining whether the restriction can be “demonstrably justified in a free and democratic society”… Quite simply, the level of protection to which expression may be entitled will vary with the nature of the expression. The further that expression is from the core values of this right the greater will be the ability to justify the state’s restrictive action.”

38 38 McLachlin, J, dissenting “I differ from Cory J. on how the value of the expression at issue figures in the Oakes analysis. …we must be careful not to allow the discussion of context to pre-empt the analysis itself. To allow the perceived low value of the expression to lower the bar of justification from the outset of the s. 1 analysis is to run the risk that a judge’s subjective conclusion that the expression at issue is of little worth may undermine the intellectual rigour of the Oakes test.”

39 39 “In my view, justice is better served if the Crown is required to demonstrate a pressing and substantial objective, rational connection and minimal impairment independent of the perception that the content of the expressive activity is offensive or without value…” The content of the expression and its value fall for consideration at the final stage of the proportionality analysis… The third stage of the proportionality analysis engages the balancing of values envisioned by the contextual approach. At this stage, the judge is required to consider both the benefits and the detriments of limiting the expression in issue.”

40 40 B. deference to legislature? The Supreme Court of Canada has sometimes indicated its willingness to defer to the judgment of the legislature. Irwin Toy ltd v. Quebec [1989]

41 41 ““Where the legislature mediates between the competing claims of different groups in the community, it will inevitably be called upon to draw a line marking where one set of claims legitimately begins and the other fades away without access to complete knowledge as to its precise location. If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing conflicting scientific evidence and allocating scarce resources on this basis, it is not for the court to second guess. ”

42 42 “In sum, the objective of regulating commercial advertising directed at children accords with a general goal of consumer protection legislation, viz. to protect a group that is most vulnerable to commercial manipulation… ” When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources. Democratic institutions are meant to let us all share in the responsibility for these difficult choices. Thus, as courts review the results of the legislature's deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature's representative function.”

43 43 “In other cases, however, rather than mediating between different groups, the government is best characterized as the singular antagonist of the individual whose right has been infringed. … In such circumstances, and indeed whenever the government's purpose relates to maintaining the authority and impartiality of the judicial system, the courts can assess with some certainty whether the "least drastic means" for achieving the purpose have been chosen, especially given their accumulated experience in dealing with such questions…”

44 44 To what extent is this distinction workable? Thomson Newspapers Co. v. Canada [1998]

45 45 C. pressing and substantial purpose R. v. Big M Drug Mart Ltd [1985]

46 46 “At the outset, it should be noted that not every government interest or policy objective is entitled to s. 1 consideration. Principles will have to be developed for recognizing which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Once a sufficiently significant government interest is recognized then it must be decided if the means chosen to achieve this interest are reasonable ‑‑ a form of proportionality test. The court may wish to ask whether the means adopted to achieve the end sought do so by impairing as little as possible the right or freedom in question.”

47 47 “Two reasons have been advanced to justify the legislation here in issue as a reasonable limit. It can be urged that the choice of the day of rest adhered to by the Christian majority is the most practical. This submission is really no more than an argument of convenience and expediency and is fundamentally repugnant because it would justify the law upon the very basis upon which it is attacked for violating s. 2(a). The other more plausible argument is that everyone accepts the need and value of a universal day of rest from all work, business and labour and it may as well be the day traditionally observed in our society…. The first and fatal difficulty with this argument is, as I have said, that it asserts an objective which has never been found by this Court to be the motivation for the legislation.”

48 48 D. rational connection Oak case

49 49 E. minimal impairment Thomson Newspapers Co. v. Canada

50 50 In determining whether a restriction is justified under s. 1 as minimally impairing the freedom of expression, this Court has stated: As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.... On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.

51 51 The provision in this case is also overbroad and underbroad in relation to the purpose of the legislation. The ban imposed in this case is overbroad because it prohibits in the final three days of an election campaign the publication and use by voters of all those polls which would meet the usual standards of accuracy… the blackout period may not adequately disabuse voters of an erroneous impression left by a poll which did not disclose its methodology to critics or the public. This evidence supports the view that the mandatory disclosure of methodological information combined with a blackout period fulfils the government's purpose more effectively than the mandatory disclosure alone.

52 52 F. final balance The final requirement demands balancing of interests. Dagenais v. Canadian Broadcasting Corp [1994]

53 53 “At other times, however, the measure at issue, while rationally connected to an important objective, will result in only the partial achievement of this object. In such cases, I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms. A legislative objective may be pressing and substantial, the means chosen may be rationally connected to that objective, and less rights-impairing alternatives may not be available… Nonetheless, even if the importance of the objective itself (when viewed in the abstract) outweighs the deleterious effects on protected rights, it is still possible that the actual salutary effects of the legislation will not be sufficient to justify these negative effects.”

54 54 “In my view, characterizing the third part of the second branch of the Oakes test as being concerned solely with the balance between the objective and the deleterious effects of a measure rests on too narrow a conception of proportionality. I believe that even if an objective is of sufficient importance, the first two elements of the proportionality test are satisfied, and the deleterious effects are proportional to the objectives, it is still possible that, because of a lack of proportionality between the deleterious effects and the salutary effects, a measure will not be reasonable and demonstrably justified in a free and democratic society. I would, therefore, rephrase the third part of the Oakes test as follows: there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures.”

55 55 R. v. Sharpe [2001]

56 56 “I conclude that in broad impact and general application, the limits s. 163.1(4) imposes on free expression are justified by the protection the law affords children from exploitation and abuse. I cannot, however, arrive at the same conclusion in regard to the two problematic categories of materials described above. The legislation prohibits a person from articulating thoughts in writing or visual images, even if the result is intended only for his or her own eyes. It further prohibits a teenager from possessing, again exclusively for personal use, sexually explicit photographs or videotapes of him- or herself alone or engaged with a partner in lawful sexual activity. The inclusion of these peripheral materials in the law’s prohibition trenches heavily on freedom of expression while adding little to the protection the law provides children. To this extent, the law cannot be considered proportionate in its effects, and the infringement of s. 2(b) contemplated by the legislation is not demonstrably justifiable under s. 1.”

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