Charter and Bill of Rights Attack Outline

7/31/2019 Charter and Bill of Rights Attack Outline

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CHARTER AND BILL OF RIGHTS ATTACK OUTLINE

The Charter applies to federal government and provinces.

Pursuant to Section 7, 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.

Everyone means every human being physically present in Canada and by virtue of such

presence amenable to Canadian law, (Singh v. MEI).

Everyone doesnt apply to corporations, only natural persons. (Irvine Toy).

Look at the Test in Blencoe to determine whether an agency will be under Charter scrutiny.

To access procedural safeguards in the context of s. 7, complainants must first cross the

threshold of establishing that their life, liberty or security interests are impaired by the relevant

decision. If the affected individual cant establish that the impugned decision touches a s. 7

interest, procedural fairness may still be due, but as a matter of common law rather than a

consequence of s. 7 and the PFJ. (F&S p. 171)

Liberty: This interest is no longer restricted to mere freedom from physical restraint and is also

engage where state compulsions or prohibitions affect important and fundamental personal

choices with which we are very reluctant to see the state interfere (abortion, right to end your life)

control over ones person autonomy. Such personal autonomy is not synonymous with

unconstrained freedom liberty interest NOT engaged here. (Blencoe)

Security:

The right to security of the person means not only protection of ones physical integrity but the

provisions of necessaries for its support. (Law Reform Commission, cited in Singh).

Security of the person must encompass freedom from the threat of the physical punishment orsuffering as well as from such punishment itself. You dont have to show that youll be killed ortortured, the threat alone suffices. Even though Cdn govt is not directly responsible, ourunderstanding of the Charterdoes not turn on whether the govt is directly or indirectlyresponsible, but the effects of a deprivation of a right. (Singh).

State interference with bodily integrity and serious state-imposed psychological stress constitutea breach of security of the person. Where psychological integrity is at issue, security of theperson is restricted to serious state-imposedpsychological stress i.e. resulting from actionsof the state, and must be serious. (Blencoe)


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Is Fundamental Justice denied by the procedures set out in the Act? (Singh). Do the procedures

in the Act allow the claimant to state his case and know the case he has to meet? If not, no FJ.

Opportunity to state his case can be an oral hearing or written submission. FJ requires oral

where credibility is on the line. (Singh)

Go through the Baker Test in Suresh to determine what procedural protections should be

applied.

Can the deprivation of s. 7 rights be saved under S. 1?

Unreasonable Delay can stay a proceeding. Look at Blencoe.

Singh v. Ministry of Employment and Immigration:

Appellants asserted a claim to Convention refugee status. MEI determined they were not refugees (s.45);

they applied for redetermination (s.70), IAB refused applications to proceed on the basis that it didnt

believe that there were reasonable grounds to believe that a claim could, upon the hearing of the

application, be established. (s.71(1)) Minister argued that no person that is not a citizen, and no

unqualified person, has a right to stay. Singh argues that his status as a refugee implicates s.7, and

particularly, security of the person and possibly life, by virtue of the prospect of deprivation of security of

the person by a third party (not Cdn govt). The appellants claim that they did not have fair opportun ity to

present their claims or to know the case they had to meet.

Do procedures in the Immigration Actfor the adjudication of the claims of persons claiming refugee status

in Canada deny claimants rights under s.7?

Security of the person must encompass freedom from the threat of the physical punishment orsuffering as well as from such punishment itself. Even though Cdn govt is not directly responsible,our understanding of the Charterdoes not turn on whether the govt is directly or indirectlyresponsible, but the effects of a deprivation of a right.

Rights:Under s.45, a refugee claim is asserted in the context of an inquiry (which assumes claimantis in Canada). An adjudicator reconvenes the inquiry (s.47(1)) to determine whether a refugee fallsinto s.4(2), which gives a refugee the right to remain in Canada while lawfullyin Canada. Section 37allows Minister to give a permit to refugee at the time of determination. Refugee is entitled to requirethe Minister to exercise discretion fairly. Refugee also has right not to be returned to a country whereher life or freedom would be threatened (s.55), and the right to appeal a removal or deportation order(s.72).

Procedures:There is no oral hearing, and the Refugee Status Advisory Committee and Minister relyupon the governments knowledge of world affairs in rendering a hearing. Refugee is only heardthrough her claim and the transcript of his examination under oath, and has no right of reply. Claimantcan apply for redetermination by the IAB if refused. Board cannot allow hearings in every case andcan only do so if it is of the opinion that there are reasonable grounds to believe that a claim could,upon the hearing of the application, be established.

Is Fundamental Justice denied?Yep. The legislative scheme provides inadequate opportunity tothe refugee claimant to state his case (no oral hearing) and know the case he has to meet. IAB isquasi-judicial so only material they should rely on is the claim ants application. The process is highly


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adversarial, and applicant must establish that Minister is wrong without any knowledge of Ministerscase beyond rudimentary reasons for why the claim was rejected.

Even though appellants are not yet Convention refugees (i.e. without claim to s.55 rights), they maybe persons with a well-founded fear of persecution, and so it is unthinkable that the Charterwouldnot apply to entitle them to fundamental justice in adjudication of their status.

Saved under s.1?Nope. Counsel for Minister says the UNHCF was okay with Canadas procedures and

many other Western countries had administrative adjudication without right to appeal. Wilson finds thatthese types of utilitarian considerations cant justify a limitation on Charter rights. Certainly the

guarantees of the Charter would be illusory if they could be ignored because it was administratively

convenient to do so

CHARKAOUI V. CANADA

The IRPA allows for SCs to be issued declaring that a FN or PR is inadmissible to Canada on grounds ofsecurity, leading to that persons detention. The certificate and detention can be reviewed in a processwhich may involve non-disclosure of some or all the sensitive or confidential information that forms thebasis of the certificate (i.e. in cameraand ex parte) and the judge may rely on it. Once a certificate isissued, a permanent resident may be detained, and the detention must be reviewed within 48 hours; inthe case of a foreign national, the detention is automatic and that person cannot apply for review until 120

days after a judge determines the certificate to be reasonable (ss. 82 84). The judges determination onthe reasonableness of the certificate cannot be appealed or judicially reviewed (s. 80(3)). If the judgefinds the certificate to be reasonable, it becomes a removal order, which cannot be appealed and whichmay be immediately enforced.

Charkaoui is a permanent resident and Harkat and Almrei are refugees; at the time of the decisions on

appeal, all had been detained for some time since 2003, 2002 and 2001 respectively. H and As SC

have been determined to be reasonable, not yet Cs. C and H were released conditionally in 2005 and

2006 respectively. A is still in detention and will be deported. In all cases, the detentions were based on

allegations that the individuals constituted a threat to the security of Canada due to involvement in

terrorist activities.

SURESH v. CANADA

Suresh came to Canada from Sri Lanka (1990) as a convention refugee and applied for immigration. In1995 the government attempted to deport him on the grounds that he was a member of Liberation Tigersof Tamil Eelam, an organization alleged to engage in terrorist activity. Section 53 of the Immigration Actallowed for certain classes of individuals (regarded by the minister to be a danger to the security or publicin Canada) to be deported to a country where the persons life or freedom would be threatened. Sures hchallenged the order for his deportation.

What is required by way of procedural protection under s.7?

In Section 7 cases, the principles of fundamental justice are not identical to the duty of fairness in

Baker, but they are same principles underlying that duty. Therefore, the Court applies same factorsfrom Bakerto decide what procedural protections ought to be provided.

Note: ...we look to the common law factors not as an end in themselves, but to inform the s.7procedural analysis, i.e. to inform the constitutional principles but the CML is not constitutionalized.

BAKER FACTORS USED FOR PFJ

Nature of decision to deport resembles judicial proceedings, but is still made by individual withdiscretion. This doesnt suggest either strong or weak procedural safeguards.


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Nature of statutory scheme in Immigration Actsuggests need for STRONG safeguards. There is adisturbing lack of parity between the protections under s.40.1 (ensure certificates issued fairly withmeaningful participation of those involved), and under s.53(1)(b), where there is no provision for ahearing, no requirement of written or oral reasons, no right of appeal no procedures at all. Greater procedural protection.

Importance of right affected: Interest in staying in Canada highly significant due to risk of torture he

may face on return to Sri Lanka.

Greater protections. Legitimate expectations: Article 3 of the Convention Against Torture prohibits deportation to states

where there are substantial grounds for believing the person would be in danger of being subjected totorture. This informs s.7 and so appellant had right to procedural safeguards at the s.53(1)(b) stage.

Choice of agency procedures: Minister free to choose procedures, but this must be reconciled withincreased protection warranted by serious situation of refugees like Suresh.

Conclusion: Does not require full oral hearing or complete judicial process, but require more thanthe procedures required by act under s.53(1)(b) that is, none. In particular, the refugee must beinformed of the case to be met (i.e. material upon which Minister is basing decision). Without accessto materials Minister was receiving from her staff, Suresh had no knowledge of which factors theyneeded to address, or the chance to correct factual inaccuracies.

Should also be given an oppty to challenge the information of the Minister where issues to it s validityarise.

Where the Minister is relying on written assurances from a foreign government that a personwould not be tortured, the refugee must be given an oppty to present evidence and makesubmissions as to the value of those assurances.

If the refugee makes out a prima faciecase of risk of torture upon deportation, Minister must provideall relevant information and advice she intends to rely on, allow the refugee to address the evidence inwriting, and after considering all information must provide written reasons that articulate and rationallysustain a finding that there are no substantial grounds to believe that the individual will be subject totorture, execution, or other cruel or unusual treatment. The reasons must also articulate why theMinister believes the individual to be a danger to the security of Canada (subject to privilege orreasons for not disclosing the info).

Regarding assurances of the foreign state: There is a difference b/w assurance that the state will notapply the death penalty (a legal process) and an assurance that it will not resort to torture (an illegalprocess)particularly when theyve engaged in torture in the past. Minister may also take intoaccount HR record of the govt giving assurances.

The lack of basic procedural protections cannot be justified by s.1; there is no rational connection

between the purpose and the lack of protections in this case.

Blencoe v. BC Human Rights Commission

B minister in NDP BC government accused of sexual harassment. Accusation madepublicly. Ended up before BC HR Commission. Government dismissed him from cabinet.Lots of media coverage. He resigned from his seat. From the time the complainants filedcomplaint until HR Commission scheduled a hearing, 30 months had passed. Bs repu tationwas destroyed by this time. There was no reason given for the delay. B applied for stay ofproceedings until challenge to the proceedings could be heard.

1) Does the Charter apply to the Commission? Yes

2) Was Bs section 7 interest (liberty and security of the person) infringed by the delaycaused by the Commission? Pointed to the psych harm caused to him from mediacoverage, nature of accusations and stigma? No

3) Was the delay unreasonable under CML? No, but he gets some relief, he gets costs

Charter Scrutiny: Counsel for the Commission said the Commission is not agovernment organization and does not exercise a governmental function as


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required by s. 32 of the Charter for it to apply. SCC lays out test for whetherparticular agency falls under Charter scrutiny:

1) Whether the agency exercises mandate independently of government thisagency is independent of government but that is required for the nature ofhuman rights regulation.

2) Whether the challenge is to a statutory provision or some action by theagency here, the challenge is to an administrative action.

3) Whether the agency is acting judicially is what it is doing closer toadjudication than administration of policy program? Here, the Commission isacting judicially.

To escape Charter scrutiny, must satisfy all three of these. But here, the court says theCommission is subject to Charter scrutiny even though it seems to pass these indicia. Thebasis of the Commissions authority is statute. It is inconsistent to think that a legislaturewhich is bound to enact statutes consistent with the Charter, can delegate a power to aninstitution created by statute that could exercise powers that would not be subject to Charterscrutiny. Parliament cannot delegate more powers than it has. Since it must exercise itslegislative making authority pursuant to Charter, anything born of this power must also besubject to public scrutiny. Also, this is a public program concerned with supporting humanrights.

Ratio (Charter scrutiny):Any admin agency with constitutive statute will be subject toCharter review.

S. 7 Liberty Interest: This interest is no longer restricted to mere freedom from physicalrestraint and is also engage where state compulsions or prohibitions affect important andfundamental personal choices with which we are very reluctant to see the state interfere(abortion, right to end your life)control over ones person autonomy. Such personalautonomy is not synonymous with unconstrained freedom liberty interest NOT engagedhere.

S. 7 Security of the Person Interest: State interference with bodily integrity and seriousstate-imposed psychological stress constitute a breach of security of the person. Where

psychological integrity is at issue, security of the person is restricted to serious state-imposedpsychological stress i.e. resulting from actions of the state, and must beserious.Bastarache also looked at whether there was sufficient nexus b/w the delay and theprejudice to Blencoe and decided there was.B has suffered great harm but the principle cause has not been the delay (even with the 5month unexplainable lapse), it is the publicity associated with the claims. The harm was notserious because it is not interference with fundamental personal choices.

Dignity: There is no autonomous, free-standing right to dignity and reputation.

Note: Bastarache analyzes liberty and security of the person separately. But, what he looksat in security of the person is the same as what he looks at for liberty. In this kind of case,

whats the difference between security of the person and the interest protected by liberty?Note: Courts will be reluctant to scrutinize under the Charter where the courts feel there areadequate admin law principles.

Delay: Common law tradition that unreasonable delay can lead to stay of proceedings if ithas prejudicial results on the proceedings (e.g. witnesses die, etc.). Unreasonable delay ispart of the content of duty of fairness that can act as a trump card whatever themerits of the case to which one is subject, if a court determines that there has been adelay caused by the admin agency that is unreasonable and that prejudices theperson subject to those proceedings, the proceedings can be stayed.


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Here, the court says that there is no prejudice caused by the delay (this is delay going toevidentiary factors hearing fairness). But, the court was asked to consider whetherunreasonable delay in and of itself is sufficient ground to stay the proceeding. Could a delayitself constitute an abuse of process (this is about the delay itself)? In principle, delay byitself, if sufficient, could constitute an abuse of process (bring the human rightsprocess into disrepute). There was a 5-month unreasonable period during which therewas no communication. Court has to answer whether the publics interest in avoiding theabuse of process would exceed the harm to the publics interest if proceedings are stayed.On the basis of this balancing act, the court found that the delay was not so unreasonableas to merit a stay of proceedings.

The determination of whether a delay is inordinate is not based on the length of thedelay alone, but on contextual factors, including the nature of the case and itscomplexity, the purpose and nature of the proceedings, and whether the respondentcontributed to the delay or waived the delay. Here, although the Commission took longerthan is desirable to process the complaints, the delay was not so inordinate as to amount toan abuse of process.

Balancing Test:Abuse of process from delay versus damage to the publics interest in

seeing the proceedings continue. I.e. the government had acted wrongly but not wronglyenough when balanced with the other public interest.Held: No stay but gives some relief he gets costs for being dragged through this lengthyprocess.Ratio: In principle, delay by itself, if sufficient, could constitute an abuse of process (bringthe human rights process into disrepute).

Minority (Lebel): Bastarache casts this as a dispute between the state and B. But, thereare also the people who allege harassment. Also set out test for unreasonable delay:

1) Time taken compared to the inherent time required to prosecute the matter2) Causes of the delay e.g. B challenged many of the motions for disclosure and

other procedural matters. B was free to do so, he could not blame the commissionfor delay caused by him exercising his procedural rights.

3) Impact of the delayAbusive delay is wrong. The board was inept and incompetent. His life was destroyedcareer ruined, family life ruined, was suffering from clinical depression.

Note: Although the court recognizes that there is public interest in seeing the proceedingscontinue given the gravity of the charges, it awards costs as a message to the Commission.The decision seems strange because we let serious alleged criminals out of jail because ofan illegal search by cops but here the court is letting the HR Commission proceedingscontinue even after wrongful government action.

Maybe the Charter analysis focuses more on the individual and the judicial review stufffocuses more on the institutional side. Also, the victims of the alleged wrongdoing haveto have their interests consideredthis doesnt happen under the Charter. Here, the

victims interests are considered because not represented by the Crown.


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In Singh, the appellants argued that the procedural mechanisms in the Immigration Act deprived them

of their Section 7 Charter rights.

These rights are subject to reasonable limitations under s. 1.

Are the (claimants/appellants?) entitled to the protection of s. 7 of the Charter?

First look to the act to determine if the person(s) have been deprived of a section 7 right.Singh.

Does the ADMS decision affect the:

Life:

Is Fundamental Justice denied by the procedures set out in the Act? (Singh)

Do the procedures in the Act provide for an adequate opportunity to state his case and know the case

he has to meet?

1. Is an oral hearing required? U l

When credibility is involved, fundamental justice requires an oral hearing. (Singh)

An oral hearing a face to face encounter with the decision maker (or delegate) and, where relevant,the other parties. Assumes the presence of other procedural entitlements (e.g. right to presentevidence and right to counsel), but it can be an independent procedural obligation on its own.

The right to an oral hearing was usually included as an element of natural justice (from the audialteram partemrule).

As the duty of fairness emerged, the presumption in favour of an oral hearing (vs. writtensubmissions) disappeared. Deference to procedural choices became the norm (Nicholson, Bakerwritten hearing). The countervailing tendency is with the Charterand Bill of Rights(Singh, Suresh).

Claims to oral hearings are also ones that are situation sensitive in the sense that their necessity maydepend on the matters that are at issue in the particular proceedings as opposed to being a feature ofall exercises of the relevant statutory power. The conventional view has been that the claim for an

oral hearing is at its highest when credibility is an issue in the proceedings. However, todaythere are arguments of competing considerations and that certain kinds of cases favour inquisitorialmethods where no parties are present and no cross-examination is allowed (e.g. sexual harassment).

Once again, in answering whether or not an oral hearing is warranted, questions of open hearings,cross-examination rights, and access to and the ability to meet adverse evidence.

2. Are written submissions an adequate substitute?


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Would written submissions be an adequate substitute?

In the Singh case the court advanced the single right theory meaning it suffices that the

individual is deprived of one of the s. 7 rights, there need not be a deprivation of all three.

1. If the ADMs decision affects the life, liberty or security of the person, the Charter threshold has

been passed.

Is Fundamental Justice denied by the procedures for the determination set out in the act? The most

notable factors in determining the procedural content of FJ in a given case are: 1. The nature of the

rights at issue; and, 2. The severity of the consequeneces to the invidivual

Can the procedures be saved by S. 1? Once the claimant has shown a Charter breach (deprivation of s.7

a right and no FJ( the onus is on the government to prove it justifiable under s. 1.

BOR

What procedural protections for property rights are guaranteed by due process?

Bill of Rights, Section 1(a) guarantees a degree of procedural due process in the application of the law

in an individualized, adjudicative setting. (Authorson)

Authorson v. Canada (Attorney General)

Differences between Bill of Rights and Charter of Rights & Freedoms:

1. Federal-Provincial Domains: Bill of Rights only applies in the federal domain not provincial(including action that prov. administrative tribunals can take). Charter applies to any governmentaction.

2. Application: Bill of Rights applies to laws of Canada, whereas Charterapplies to governmentaction (Charter, s.32). E.g. hospital boards and universities all depend on statute for authority thatthey exercise, but generally they havent been found to be implementing a particular govt policyand so Charter doesnt apply. Bill of Righ ts presumably applies to all regulations etc.

3. Subject: Charter applies to everyone (all natural persons); Bill of Rights applies to persons (i.e.applies to corporations)

4. Property: Bill of Rights includes section 1(a), which refers to enjoyment of property (...in Canadathere have existed and shall continue to exist ... the following human rights and fundamentalfreedoms, namely, (a) the right of the individual to life, liberty, security of the person and

enjoyment of property, and the right not to be deprived thereof except by due process of law...).The Charterhas no reference to property rights.

5. Justification: Charter includes section 1 which can justify an infringement if it is prescribed by lawand demonstrably justified in a free and democratic society. Section 2 of the BoR does have anotwithstanding clause, but no s.1. Are the rights in the BoR therefore absolute?

o In a Charters.7 analysis, overbreadth is considered, which is very similar to minimalimpairment test under s.1. This analysis in s.7 has been criticized, b/c thats the kind ofanalysis that should happen under s.1. Courts have yet to say that an infringement of s.7is justified under s.1.


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o Reference re B.C. Motor Vehicles: Principles of fundamental justice inhere in the basictenets of our legal system. The PFJ analysis that happens within s.7 seems to precludes.1 analysis.

6. History: Bill of Rights has a very anaemic history, and so Wilson prefers to use Charter. Courtsused to understand s.2(e) to have a very limited scope, and only applied to pre-existing legalrights that a person might have. E.g. Parole cases could have parole rescinded without ahearing; courts found that parole was a privilege and not a rightand so therefore BoR doesntapply.

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Charter and Bill of Rights Attack Outline