International Covenant on Economic, Social and Cultural Rights - Fifth Report of Canada
Appendix - Review of Jurisprudence
Article 2: Rights Specifically Subject to Non-discrimination Provisions
In Canada (House of Commons) v. Vaid, the Supreme Court considered whether the Canadian Human Rights Act was applicable, because of the Constitution, by reason of a parliamentary privilege of the House of Commons and its members on questions of employment. The respondent, Satnam Vaid, was the driver of the president of the House of Commons. He filed a complaint of discrimination based on race with the Canadian Human Rights Commission. The Court concluded that the Canadian Human Rights Act applied to all employees of federal administration, including those that work for Parliament. However, considering that Mr. Vaid's complaints of alleged discrimination and harassment are within the context of his allegation of an indirect dismissal, they fall under the procedure for filing grievances as established by the Parliamentary Employment and Staff Relations Act and they should be handled in compliance with that grievance procedure. The grievance system established by the Parliamentary Employment and Staff Relations Act coexists with the settlement mechanism established by the Canadian Human Rights Act. The purpose of section 2 of the Parliamentary Employment and Staff Relations Act is to avoid duplication (overlapping). Nothing in Mr. Vaid's complaints justified that they should be considered outside of their particular labour relations context.
In the matter of Gosselin (Guardian of) v. Québec (Attorney General), the Supreme Court of Canada ruled that sections 72 and 73 of the Québec Charter of the French Language, which exclude children from English instruction on the basis of the language in which their parents received their instruction, are valid and do not infringe sections 10 and 12 of the Québec Charter of Human Rights and Freedoms. The appellants alleged that the basic criterion for determining a child's language of instruction, that is, the language in which the parents were educated, was part of the child's "civil status", which is a prohibited ground of discrimination under section 10 of the Québec Charter of Human Rights and Freedoms. Since the appellants are members of the French language majority in Québec, their objective in having their children educated in English does not fall within the purpose of section 23 of the Canadian Charter of Rights and Freedoms. Section 23 establishes a complete code with regards to minority language educational rights, and it attains its objective of protecting and developing the linguistic minority in each of the provinces by contributing to the establishment of favourable conditions for the development of the anglophone community in Québec and of the francophone communities in the other provinces. There is no hierarchy amongst constitutional provisions. Equality guarantees cannot therefore be used to invalidate other rights expressly conferred by the Constitution. All parts of the Constitution must be read together. It cannot be said that in implementing section 23, the Québec legislature has violated the equality rights contained in either section 15(1) of the Canadian Charter of Rights and Freedoms or sections 10 and 12 of the Quebec Charter.
Article 3: Equal Rights of Women and Men
Newfoundland (Treasury Board) v. N.A.P.E: In 1988, the government of Newfoundland and Labrador signed a Pay Equity Agreement recognising that it had under paid female employees in the health care sector. The Public Sector Restraint Act, introduced in 1991 to avert a financial disaster, had the affect of postponing the commencement of the pay equity increase and eliminated the obligation to pay the 1988 to 1991 arrears. At issue before the Supreme Court of Canada was whether the Newfoundland government, by postponing pay equity payments, was violating equality rights of section 15 of the Charter. The Court did not, however, make any pronouncement on the female health care employees pay equity rights since they had been acquired by contract, rather the question was whether the government was discriminating against women by targeting pay equity compensation in its budget cuts. The province argued that a government financial crisis of the sort it went through, justified limiting Charter rights under section 1 of the Charter. The Supreme Court unanimously agreed there had been discrimination but that addressing the fiscal crisis was a pressing and substantial objective and that the measure was done to avert a serious financial crisis which justified the infringement of section 15. The exceptional financial crisis called for an exceptional response. According to the Court, to establish a financial crisis the government must prove that it had reasonable basis to believe that the fiscal health of government as a whole (not isolated to one department or program) was in jeopardy.
Article 6: Right to Work
Canadian Charter of Rights and Freedoms
In Lavoie v. Canada, the Supreme Court of Canada was unanimous in its finding that the Public Service Employment Act was discriminatory as it provided Canadian citizens with preferential treatment in federal Public Service employment and therefore, violated the appellants' right of equality under section 15 of the Canadian Charter of Rights and Freedoms. 2 Employment was deemed vital to one's livelihood and self-worth, and there was no apparent link between one's abilities and citizenship. The majority of the Supreme Court found however, that the discrimination was reasonable under section 1 of the Charter (reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society), because it was reasonable for the federal government to encourage residents to become Canadian citizens through federal hiring preferences. The minority held that the law section infringed section 15 of the Charter in a way that marginalizes immigrants from the fabric of Canadian life and that the violation of section 15 was not justified under section 1 of the Charter.
In Archibald v. Canada, the Federal Court of Appeal dealt with a legislation requiring the farmers of a designated area (Manitoba, Saskatchewan, Alberta and parts of British Columbia) to sell their wheat and barley to the Canadian Wheat Board and prohibiting to sell it themselves to customers in domestic and export markets. The Court concluded that the legislation does not infringe on their right to equality. The appellants have not demonstrated a cognizable analogous ground (analogous to those "immutable or constructively immutable personal characteristics" mentioned in section 15 of the Canadian Charter of Rights and Freedoms). Residence and location of a farm within the designated area were not an immutable characteristic, nor a constructively immutable one. Furthermore, the effect upon the individual is not linked to the essential factors of dignity or personal identity. The Court stated that it accepts that in some circumstances, freedom of association may protect a right not to associate, however there is no violation of the freedom of association because only the associational aspects of activities are protected and not the activities themselves. As to the mobility rights protected by section 6 of the Charter, the Court stated that those rights are subject to laws of general application in force in a province and the impugned legislation is such a law of general application. Application for leave to appeal was denied by the Supreme Court.
In Rombaut v. New Brunswick (Minister of Health and Community Services), the appellants challenged the constitutional validity of a provision under the Medical Services Payment Act, which allowed the provincial government to control the number and distribution of doctors in the province. The appellants were family physicians who alleged that their Charter rights to association, mobility, liberty and equality were violated. The Court of Appeal recognized the provincial government's inherent right to legislate and limit expenditures in the area of health care. It held that the appellants had no constitutional right to earn a livelihood in New Brunswick, nor did the freedom of association protection guarantee their right to practice medicine free of government intervention.
Human Rights Legislation
Québec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc. involved a man who had plead guilty to criminal charges. He served his sentence, was paroled and returned to work to find that he had been dismissed and replaced. The complainant alleged that his dismissal was not justified and was due to his being convicted, such as to constitute unlawful discrimination based on a criminal record under section 18.2 of Québec's Charter of Human Rights and Freedoms. The Supreme Court of Canada recognised that "the right of individuals with criminal convictions to employment and to re-enter the labour market are important values in our society" and the Court held that section 18.2 reflects these values by protecting employees, whose criminal record is not related to their employment, from discrimination. The Court concluded that in this case, the complainant could not prove that the reason for his dismissal was the fact of his conviction and not his inability to work due to his incarceration.
In Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), M was refused a job as a gardener-horticulturalist, and H was refused a job as a police officer, because the pre-employment medical exam in both cases revealed an anomaly of the spinal column. T was dismissed from his position as a police officer because he suffered from Crohn's disease. The medical evidence in each case indicated that the individuals could perform the normal duties of the position in question and that they had no functional limitations. All three filed complaints alleging that they were discriminated against on the basis of handicap. The Supreme Court of Canada stated that a liberal and purposive interpretation of the Québec Charter of Human Rights and Freedoms and a contextual approach support a broad definition of the word "handicap", which does not necessitate the presence of functional limitations and which recognizes the subjective component of any discrimination based on this ground. The ground "handicap" must not be confined within a narrow definition. Instead, courts should adopt a multidimensional approach that considers the socio-political dimension of "handicap". The emphasis is on human dignity, respect and the right to equality rather than merely on the biomedical condition. A "handicap" may exist even without proof of physical limitations or other ailments.
Article 7: Right to Just and Favourable Working Conditions
Human Rights Legislation
Lambert v. Québec (Procureur général) involved a social assistance beneficiary registered in the Stages en milieu de travail (STM) [internship] program. In order to participate in the STM, the claimant had to conclude a contract under which he would receive $100 per month, four percent of his salary in vacation pay and his normal monthly benefits. Everything would be paid to him by the Department of Income Security. Section 24 of the Act respecting income security provided that programs such as STM would not be subject to the requirements of the Act respecting labour standards, the Labour Code and collective agreements. The claimant's internship was terminated after five weeks because of his "disruptive behaviour". Mr. Lambert complained to the Commission des normes du travail on the ground that he was the victim of discrimination by reason of his social condition as a social assistance beneficiary and that he was consequently deprived of the minimum wage to which he would have been entitled if he had not been a social assistance beneficiary participating in an STM. The Québec Court of Appeal ruled that the distinction made between workers who were not social assistance beneficiaries and those participating in the STM was not based on the ground of social condition. The terms of participation in the STM did not violate beneficiaries' human dignity. These programs were designed to improve the economic situation of beneficiaries by providing them with training that could lead to paid employment.
In Syndicat de la fonction publique du Québec v. Québec (Attorney General), the Superior Court of Québec had to deal with the issue pay equity between men and women. Since 1997, the purpose of the Pay Equity Act is to redress differences in compensation due to systemic gender discrimination. This legislation has precedence over any employment contract and applies to every employer whose enterprise employs 10 or more employees, including the government. Under Chapter IX of the Act, employers can ask the Commission de l'équité salariale to approve, under certain conditions, a pay equity or salary relativity plan completed before the adoption of the Act. Consequently, the employer would not have to undertake a new pay equity process under the general provisions of the Act. The Court rules that Chapter IX maintained, for a number of employed women, a situation of systemic pay discrimination, precisely what the Pay Equity Act aimed to redress. Chapter IX of the Act therefore infringes on the dignity and equality rights of employed women as guaranteed under section 15 of the Canadian Charter of Rights and Freedoms and section 10 of the Québec Charter of Human Rights and Freedoms. The case was not appealed.
Article 8: Trade Union Rights
In Dunmore, the Supreme Court of Canada declared unconstitutional provisions of the impugned legislation excluding agricultural workers from the protection of the labour relations regime in Ontario. The Court suspended this declaration for a period of 18 months to allow amending legislation to be passed if the legislature sees fit to do so. The Supreme Court recognized that the constitutional protection of freedom of association has a collective aspect. That is, it may protect certain union activities that are central to freedom of association even though they are activities of a group and cannot be characterized as the actions of individuals. History has shown and Canada's legislatures have recognized that a posture of government restraint in the area of labour relations will expose most workers to a range of unfair labour practices. In order to make the freedom to organize meaningful, in this very particular context, section 2(d) of the Canadian Charter of Rights and Freedoms (freedom of association) may impose a positive obligation on the state to extend protective legislation to unprotected groups.
In R. v. Advance Cutting & Coring Ltd, the appellant contractors and construction workers were charged with hiring employees who did not have the required competency certificates, or with working in the industry without such certificates, contrary to the Quebec Construction Act. The Act required the appellants to become members of one of a list of union groups in order to obtain the certificates. They argued that such an obligation was unconstitutional because it breached their right not to associate, which they claimed was a component of the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada found that an implied negative right not to associate existed. They held different views as to whether the right was infringed by the legislation and whether the infringement was justified under section 1 of the Canadian Charter of Rights and Freedoms.
In United Food and Commercial Workers, Local 401 v. Alberta Human Rights and Citizenship Commission, Safeway Ltd, the employer, and the Union had negotiated a buyout package for senior employees. The Alberta Court of Appeal held that certain employees who were ineligible to the employee buyout program because they had not worked sufficient hours due to their disabilities were discriminated against. The Court concluded that the Union had a duty to accommodate by making reasonable efforts to avoid the discriminatory effects of the buyout provision on the complainants. Neither the Union nor Safeway would have been subjected to undue hardship if they had met their duty to accommodate the complainants. The provision was not reasonable, nor justifiable.
Article 9: Right to Social Security
Canada Pension Plan
In Hodge v. Canada (Minister of Human Resources Development), Ms. Hodge was refused a survivor's pension under the Canada Pension Plan because she was not covered by the definition of "spouse". In fact, she had definitively terminated the relationship with her de facto spouse and was no longer living with him when he died. Ms. Hodge alleged that she suffered discrimination in comparison with married couples who had separated and who received a survivor's pension on the death of the spouse. The Court found that Ms. Hodge was no longer a "spouse" from the time when she terminated the de facto relationship with her spouse and the comparison group for the purpose of reviewing compliance with the right to equality was rather the group of divorced spouses, who did not receive a survivor's pension on the death of their ex-spouses. The Supreme Court of Canada found that the definition of spouse for the purposes of the survivor's pension was constitutionally valid.
In Granovsky v. Canada (Minister of Employment and Immigration), the applicant suffered a work-related accident in 1980 and was then assessed to be temporarily totally disabled. The disability became permanent in 1993 and he then applied for a Canadian Pension Plan (CPP) disability pension. His application was refused because he had not made the required contributions to the CPP for the minimum qualifying period. He could not bring himself within the "drop-out" provision, made available to applicants who suffered from severe and permanent disabilities, under which periods of disability are not counted in the recency of contribution calculation. The applicant alleged that the contributions requirement fails to take into account the fact that persons with temporary disabilities may not be able to make contributions for the minimum qualifying period because they are physically unable to work. The Supreme Court of Canada stated that a section 15 of the Canadian Charter of Rights and Freedoms analysis (equality rights) should proceed on the basis of three broad inquiries. Mr. Granovsky's claim fails at the third step (whether the differential treatment brings into play the purpose of section 15, i.e., does the law, in purpose or effect, perpetuate the view that persons with temporary disabilities are less capable or less worthy of recognition or value as human beings or as members of Canadian society?) because he has not demonstrated a convincing human rights dimension to his complaint. The differential treatment afforded by the "drop-out" provision ameliorates the position of those with a history of severe and permanent disabilities. Drawing lines is an unavoidable feature of the CPP and comparable schemes. Parliament did not violate the purpose of section 15 of the Charter by seeking to benefit individuals with a history of severe and prolonged disability.
Hislop v. Canada (Attorney General) involved a class action lodged by same-sex partners whose partners had died between 1985 and 1998 and who were denied survivor benefits under the Canada Pension Plan (CPP). The CPP was adopted in order to give Canadians "an opportunity to retire in security and with dignity in the hope that it would cover the widest possible range of citizens". In this spirit, in 1998, the Government had amended the CPP so as to include same-sexpartnerships in the survivor benefits provisions. However, to be eligible for the benefits, the partner had to have died on or after January 1, 1998. The Ontario Court of Appeal held that this cut-off date discriminated against same-sex partners based on their sexual orientation and so were treated differently in comparison with heterosexual couples. The Court of Appeal found that the legislative provisions which established the cut off date for benefits were discriminatory. The Supreme Court of Canada has granted leave to appeal.
Bear v. Canada (Attorney General) involved the Minister's refusal to permit the applicant to make retroactive contributions to the Canadian Pension Plan (CPP). The applicant was an employee of a First Nations reserve and as a result had been engaged in tax-exempt Indian employment, which made her ineligible for contributions to the CPP. The CPP regulations were amended in 1988 to allow the exempted employees to make contributions. The applicant applied in 1992 to make retroactive contributions from 1966, when she started her employment on the reserve, to 1988. The Federal Court of Appeal concluded that the applicant had been subjected to differential treatment on the basis that she was Indian and worked on a reserve. However, the Court held that this did not amount to discrimination since the distinction was not one that affected the applicant's human dignity, but rather was based on the good faith policy that CPP contributions should be paid from taxable income.
Employment insurance benefits
In Canada (Attorney General) v. Lesiuk, the Federal Court of Appeal dealt with whether the 700 hours of work in order to be eligible for employment insurance benefits violated equality rights under section 15 of the Charter. Ms. Lesiuk claimed that the requirement negatively impacted mothers with the care of children who could not work as many hours as those without parental responsibilities. The Court accepted that being in a parent-and-child relationship constituted an analogous ground of discrimination. However, the evidence did not support Lesiuk's submission of discrimination since it established that the majority of women with children exceeded the 700-hour requirement. Moreover, the court could not conclude that not meeting the hour requirement affected a person's human dignity so as to constitute discrimination. As a result, there was no violation of the respondent's right to equality. The Supreme Court of Canada denied leave to appeal.
Worker's Compensation
Nova Scotia (Worker's Compensation Board) v. Martin involved two appellants who suffered from chronic pain related to injuries they had sustained at work. Both appellants had received temporary benefits; however, they were denied permanent disability benefits because chronic pain was excluded from compensation under the compensation regime. The Supreme Court of Canada recognised that the Workers Compensation scheme discriminated against workers who suffered from chronic pain on the basis of the nature of their physical disability. This discrimination violated section 15 of the Charter and could not be justified under section 1 of the Charter. The offending provisions were declared invalid.
Social assistance
In Gosselin v. Québec (Attorney General), Ms. Gosselin instituted a class action challenging the constitutionality of paragraph 29(a) of the Regulation respecting social aid (Québec) because it infringed the rights of claimants under 30 years of age to security of the person and equality, protected by sections 7 and 15 of the Canadian Charter of Rights and Freedoms. Paragraph 29(a) of the Regulation had the effect of reducing by approximately two-thirds the amount of welfare benefits paid to claimants under 30 years of age who were capable of working and lived alone. The Regulation came into force in 1984 and was repealed in 1989. The majority of the Supreme Court of Canada found that the scheme did not infringe the Charter. As far as section 15 was concerned, the judges unanimously recognized that the provision imposed different treatment on the basis of the beneficiary's age, a prohibited ground of discrimination under section 15 of the Charter. However, in the view of the majority, the scheme did not have a discriminatory effect because the measure reflected the goal of assisting young claimants under 30 years of age; that is to say that by encouraging them to work or to obtain training that would enable them to obtain employment, the government adopted a policy that took the needs of young claimants into account. As for section 7 of the Charter, which provides that a person may not be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice, the majority of the Court found that there was no infringement of this kind in the case and that the circumstances did not justify a new application of section 7 that would impose on the State a positive duty to guarantee an adequate standard of living.
In Falkiner v. Ontario (Ministry of Community and Social Services), the applicants were single mothers who received social assistance. They had each lived with a member of the opposite sex for less than one year. Their partners were not the fathers of their children. The relevant Regulations were amended to classify these partners as spouses. As a result of this classification, the applicants lost their entitlement to social assistance. The applicants argued that this was discriminatory and deprived them of life, liberty and security of the person (sections 7 and 15 of the Charter). On the issue of whether the relevant Regulation violated section 15 of the Charter, the Court stated that "the definition of spouse has subjected the respondents to differential treatment on the basis of three prohibited grounds of discrimination: sex, marital status and receipt of social assistance." The law created different consequences in practice for women who are found to be in spousal relationships than for men because of the tendency established in the evidence for the male person to be the recipient of the cheque and thus in control. The evidence established that the overwhelming majority of persons affected - i.e. whose benefits have been terminated - are women, and most of those are single mothers, one of the most disadvantaged groups in Canada. The Court of Appeal accepted that social assistance receipt was a ground of discrimination recognised in the Charter. The definition of spouse failed the proportionality test under section 1 of the Charter because the stated purpose to treat married and unmarried spouses equally was not rationally connected to an overbroad definition of spouse, which caught "non-marriage like" relationships and did not minimally impair the right to equality.
In M.B. v. British Columbia, the British Columbia Court of Appeal concluded that that the social assistance benefits were not deductible from an award for damages (for sexual assault). An award for damages was meant as a means of repairing a wrong, not as wage replacement and so M.B. was not in a position of double recovery for the same loss. In discussing whether social assistance could fall under the charitable donation exception to the double recovery rule, the Court explained that social assistance is not charity but rather, in keeping with the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, the British Columbia Benefits Act "can be taken as a recognition by the Legislature of a general obligation to relieve poverty and the right of those in need to receive adequate support for their health and well being."
Broomer v. Ontario (Attorney General) involved an application for an interlocutory declaration that legislation, which imposed a lifetime ban from receiving social assistance after being convicted of fraud was of no force and effect. The applicants argued that the lifetime ban violated sections 7, 12 and 15 of the Charter and that they should obtain a suspension from its application to them. One of the applicants, Broomer, was in receipt of Ontario Disability Support Program (ODSP) payments as well as Workers Compensation Board (WCB) payments but failed to report both payments received monthly to the WCB. He was charged with fraud and convicted and banned from assistance for life and the Court imposed restitution to be deducted from the remaining social assistance his family received (his wife applied for benefits for her and their three children). Without Broomer's benefits, the family's monthly income was about 165$ short of its expenses plus debt. The applicants Duke and Beauparlant were in similar situations. This was an application for interim relief from having to make restitution, pending the outcome of a constitutional challenge to provincial legislation. As a result, the Court was asked to declare certain regulations of no force and effect for the applicants in advance of the constitutional validity of the legislative scheme being reviewed. The Court was of the view that this relief should not be granted lightly, but where the imposition of the ban was "penalizing innocent individuals, especially children..." it would cause irreparable harm and encroach on fundamental rights and so could rightfully be restrained. Citing Falkiner and its recognition of social assistance receipt as an analogous ground, the Court recognized that there was prima facie discrimination since the government was imposing a burden on social assistance recipients and their families that others did not suffer. Although not addressing the constitutional validity of the legislation, because there was a prima facie violation, the Court granted the interlocutory injunction restraining the Government from making deductions regarding the applicant's repayment orders.
In Shubenacadie Indian Band v. Canada (Canadian Human Rights Commission), the Federal Court of Appeal confirmed a decision rendered by the Canadian Human Rights Tribunal which found that the Indian Band had discriminated against the complainants on the grounds of race and marital status, contrary to the Canadian Human Rights Act. The Indian Band authorized the payment of social assistance for the registered Indians and their children but refused to pay social assistance in respect of the non-Indian spouses living on the reserve with their Indian spouse. The Government of Canada had undertaken to reimburse the Band for any payments for basic social assistance made to non-Indians, such as the complainants, who were living on reserve.
Article 10: Protection of the Family, Mother and Child
In Sharpe, the Supreme Court of Canada had to deal with whether the offence of possessing child pornography in section 163.1(4) of the Criminal Code was, in terms of section 1 of the Canadian Charter of Rights and Freedoms (rights and freedoms are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society), consistent with the right to freedom of thought and expression in section 2(b) of the Charter, and consistent with the right to liberty in section 7 of the Charter. The Court held that section 163.1(4) of the Criminal Code, although prima facie inconsistent with section 2(b), was justified under section 1; and that it also followed that there was no violation of section 7. The Court concluded that Parliament's objective in passing section 163.1(4) was to criminalize possession of child pornography that poses a reasoned risk of harm to children. This objective is pressing and substantial. Over and above the specific objectives of the law in reducing the direct exploitation of children, the law in a larger attitudinal sense asserts the value of children as a defence against the erosion of societal attitudes toward them. Possession of child pornography increases the risk of child abuse. The Court concluded that in broad impact and general application, the limits section 163.1(4) imposes on free expression are justified by the protection the law affords children from exploitation and abuse. The majority of the Court declared that section 163.1 must be read as incorporating two exceptions for the possession of two categories of material that raise little or no risk of harm to children. Three judges refers to many instruments that emphasize the protection of children, namely the Convention on the Rights of the Child, its Optional Protocol on the sale of children, child prostitution and child pornography and article 10(3) of the International Covenant on Economic, Social and Cultural Rights.
In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), a majority of the Supreme Court of Canada upheld section 43 of the Criminal Code, which provides a limited justification in cases where a parent or person acting in the place of a parent uses reasonable force in the correction of a child. According to the Court, limitations in the statutory and case law provided adequate procedural safeguards to protect the right to fundamental justice and the provision did not authorize the use of force likely to cause harm. The requirement that any force used must be reasonable also ensured that criminal liability would apply in appropriate cases. Further, provided that any force met the statutory reasonableness requirement, it could not be said that it amounted to cruel or unusual treatment or punishment. Finally, taking into account the need to provide a safe environment for children, the need for appropriate guidance and discipline, and the fact that, absent of the justification, Canada's criminal law of assault would apply even to the most minor application of force, the justification did not offend the constitutional prohibition on discriminatory measures.
In Renvoi relative au project de loin C-7 sure le system de justice penile pour les adolescents, the Québec Court of Appeal considered the constitutional validity of the provisions of the Youth Criminal Justice Act (YCJA). The Court found that some of the provisions of this Act respecting sentencing, more specifically those relating to the presumption that an adult sentence would be imposed and those concerning the exception to the rule that the identity of a violent young offender would not be disclosed violated the young person's right to security of the person under section 7 of the Canadian Charter of Rights and Freedoms. The Court also found that the YCJA was not inconsistent with the Convention on the Rights of the Child or the International Covenant on Civil and Political Rights. Notwithstanding the creation of the presumption applied to the young offender, the Court expressed the view that [TRANSLATION] "nothing in these provisions prevents the court rendering the decision from emphasizing the rehabilitation and reintegration into society of the young person and imposing the least restrictive sentence possible in compliance with sections 3 and 38 interpreted in light of article 3 of the Convention (on the Rights of the Child)". Consequently, the provisions in question may be interpreted in a way that satisfies the objectives of international agreements. There was therefore no inconsistency with international law.
In Falkiner v. Ontario (Ministry of Community and Social Services), the applicants were single mothers who received social assistance. The relevant Regulations were amended to classify the partners with whom they lived as spouses. The Court of Appeal accepted the evidence that the effects of the Regulation disproportionately burden women particularly, because most sole support parents are women. See summary under article 9.
In Broomer, the Court granted relief from the application of a lifetime ban from receipt of social assistance in part because of the effect such a ban had on the recipients family, placing his wife and children in a situation of great social and financial insecurity. See summary under Article 9.
In Nova Scotia (Attorney General) v. Walsh, Ms. Walsh had been in a long-term common law relationship; however, she did not have access to equalization provisions (equal division of the value of the couples' property) in the province's Matrimonial Property Act (MPA) because it was only available to married couples. Ms. Walsh cohabited with B. for approximately 10 years. She applied for spousal support, child support and a declaration that the definition of "spouse" in section 2(g) of the MPA was unconstitutional for failing to provide her with the presumption, applicable to married spouses, of an equal division of matrimonial property and so violated her equality rights (section 15 of the Charter) on the ground of her marital status. In coming to the conclusion that there was no violation, the majority of the Supreme Court of Canada felt that the point of view that should be adopted is not when relationships break down but rather when they are entered into. The decision to marry or not is a personal one and should be free to couples. Evidence showed that persons knowingly enter into common law relationships by choice and as a result do not wish to be submitted to the marital regime and the obligations that flow from it. Any presumption that all couples intended to be subject to the same legal obligations would cancel out the couple's freedom to arrange their relationship and obligations as they see fit. The exclusion from the MPA of unmarried cohabiting persons of the opposite sex is not discriminatory within the meaning of section 15 of the Charter. The distinction does not affect the dignity of these persons.
Article 12: Right to Physical and Mental Health
In Auton (Guardian ad litem of) v. British Columbia (Minister of Health), the petitioners, including four child petitioners who were diagnosed with autism or autism spectrum disorder, had requested funding for Lovaas Autism Treatment from the provincial government and had been denied such funding. The unequal treatment is said to lie in funding medically required treatments for non-disabled Canadian children or adults with mental illness, while refusing to fund medically required ABA/IBI therapy to autistic children. The Supreme Court of Canada stated that the government must provide the services authorized by law in a non-discriminatory manner. Here, however, discrimination has not been established. First, the claim for discrimination is based on the erroneous assumption that the Canada Health Act (CHA) and the relevant provincial legislation (Medicare Protection Act) provided the benefit claimed. Second, on the facts here and applying the appropriate comparator, it is not established that the government excluded autistic children on the basis of disability. The legislative scheme does not promise that any Canadian will receive funding for all medically required treatment. All that is conferred is core funding for services provided by medical practitioners, with funding for noncore services left to the Province's discretion. Thus, the benefit here claimed - funding for all medically required services - was not provided for by the law (as required by section 15 of the Charter). The Court also looked to the reality of the situation to see whether the claimants had been denied benefits of the legislative scheme other than those they have raised. This brings up the broader issue of whether the legislative scheme is discriminatory, since it provides non-core services to some groups while denying funding for ABA/IBI therapy to autistic children. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. The legislative scheme in the case at bar, namely the CHA and the MPA, does not have as its purpose the meeting of all medical needs. It follows that exclusion of particular non-core services cannot without more be viewed as an adverse distinction based on an enumerated ground. Rather, it is an anticipated feature of the legislative scheme.
In the matter of Chaoulli, it was alleged that the failure of the Québec public health system to provide quality health care in due time, combined with the effects of section 15 of the HealthInsurance Act (Québec) and section 11 of the Hospital Insurance Act, which prohibit reimbursement by private insurances for services covered by the Régie de l'assurance maladie du Québec, infringes the rights to life, liberty and security and that this infringement is not in compliance with the principles of fundamental justice (section 7 of the Canadian Charter of Rights and Freedoms) as well as the right to life, personal security, integrity and freedom that is guaranteed by the Charter of Human Rights and Freedoms (Quebec). In June of 2005, the Supreme Court of Canada, in a divided decision (4-3), invalidated legislative provisions that prohibited Québec residents of insuring themselves in the private sector for services covered by the Québec public health care system. The majority ruled that the delays in accessibility to health care in the Québec public health care system did infringe on the right to life and the integrity of the person as protected by the Québec Charter of Human Rights and Freedoms and that the prohibitions raised, even though they undertake an urgent and real objective, which is to preserve the integrity of the Public Health care system, are not justified, and the Court is of the opinion, in light of the experiences of certain Canadian provinces and of a certain number of western countries, that many avenues are available to the Québec government to reach this objective. The Court was unable to reach a majority opinion on the question of the compatibility of these prohibitions with section 7 of the Canadian Charter of Rights and Freedoms guaranteeing that they cannot infringe on the right to life, liberty and security of the person except in accordance with the principles of fundamental justice.
In Lalonde v. Commission de Restructuration des Service de Santé, the Health Services Restructuring Commission of Ontario had recommended that the Hôpital Montfort, the only French-language teaching hospital in the province of Ontario, should become primarily an ambulatory care centre providing only certain types of care. The respondents applied to have the Commission's directives set aside. The Ontario Court of Appeal recognized that the principle of the protection of minorities is a "fundamental structural feature" that emerges from both the explicit guarantees and unwritten principles of the Canadian Constitution. The constitutional principle of protection of minorities and the principles governing the interpretation of language rights favour a large and liberal interpretation of the French Language Services Act - which imposes on the Government of Ontario a duty to provide services such as those provided at the Montfort, unless it is "reasonable and necessary" to limit them. In light of these rules of interpretation, the government of Ontario did not show that it was reasonable and necessary to limit the services provided at the Montfort.
In Irshad (Litigation Guardian of) v. Ontario (Minister of Health), the Ontario Court of Appeal discussed the recession in 1994 in Ontario, like in the rest of Canada, and the changes that were then made to the Ontario Health Insurance Plan (OHIP), a provincial health care plan available to residents of Ontario. The Ontario Court of Appeal accepted the Ontario's position that the definition of "residency" for the purpose of eligibility draws a distinction between persons who are ordinarily resident in Ontario and who are entitled, or will shortly be entitled, to stay in Ontario on a permanent basis; and those who, while ordinarily resident in Ontario are not, because of their immigration status, entitled to remain permanently in Ontario. This distinction is described as one based on "residency status" and the Government of Ontario contended that residency status is not one of the prohibited grounds of discrimination enumerated in section 15 of the i (equality rights) and is not an analogous ground to that list. The requirement that persons who are ordinarily resident in Ontario have an immigration status that permits them or will shortly permit them to remain permanently in Canada is a logical corollary to the requirement that a person intends to make his or her permanent home in Ontario. As to the three-month waiting period, apart from the prescribed exceptions, the waiting period applies to all new residents of Ontario, regardless of their citizenship, former place of residence, or immigration status. Nothing in the regulation prevents new residents of Ontario who are not from another province from obtaining health care coverage for the three-month waiting period. All of the appellants who were adversely affected by the waiting period could have obtained alternate health care coverage. Indeed, those new immigrants who are most likely to be unable to obtain health care coverage for the three-month period (e.g. refugees) are exempt from the waiting period.
In the Broomer decision, one of the applicants, Beauparlant, was suffering from a manic depression and as part of the lifetime ban that was imposed on him lost his drug card and could no longer buy medication. An interim declaration was granted to exempt him from the regulation insofar as it prevented him from having a drug card. See summary under Article 9.
Article 13: Right to Education
In Solski (Guardian of) v. Québec (Attorney General) (S.C.C.) (29297) (Casimir No. 1), Cezary Solski and Isabelle Solski, Québec residents, want their two children to attend an English public secondary school. They became Canadian citizens in May 1997. Section 72 of the Charter of the French Language requires that instruction be conducted in the French language in kindergartens, elementary and secondary schools, in public establishments and in subsidized private establishments. There are exceptions to this rule, notably for "children where the mother or the father is a Canadian citizen and they have attended or are attending a primary or secondary school in English in Canada, and the same is true for their brothers and sisters, provided that that instruction constitutes the major part of the primary or secondary instruction received by the child in Canada" (sub. 73(2) of the Charter of the French Language). The person designated by the Minister of Education of Québec refused to hear the claims of the applicants on the grounds that the children had not received a "major part" of their education in English. The Supreme Court of Canada was to determine if section 73.2 of the Charter of the French Language was inconsistent with section 23(2) of the Canadian Charter of Rights and Freedoms, which stipulates "Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language". In a unanimous decision, the Court ruled that the requirement that the "major part of the elementary or secondary instruction received in Canada" found in sub. 73(2) of the Charter of the French Language does not infringe on the rights guaranteed by section 23(2) of the Canadian Charter. However, those guaranteed rights must receive a teleological interpretation that is broad and compatible with the continuance and development of the two official linguistic communities. The expression "major part" (sub. 73(2) of the Charter of the French Language) must be readdown: the adjective "major" must receive a qualitative as opposed to a quantitative interpretation. One must evaluate if the child received a major part - not necessarily the largest part - of his instruction in the language of the minority. To evaluate if the global instruction of the child satisfies the requirements as per section 23(2) of the Canadian Charter, the interpretation must take all relevant factors into account - both objective and subjective - that show a "commitment to instruction in the minority language". The relevant factors include the time spent in each program, at what stage of education the choice of language of instruction was made, what programs are or were available, and whether learning disabilities or other difficulties exist. The relevance of each factor will vary with the facts of each case.
Article 15: Right to Participate in Cultural Life and Benefit from Scientific Progress and the Protection of Authors' Rights
Cultural life
In Henry Vlug- and -Canadian Human Rights Commission- and -Canadian Broadcasting Corporation, the Canadian Human Rights Tribunal had to deal with the inaccessibility to deaf and hard of hearing people of the audio portion of television programming, and the Canadian Broadcasting Corporation's (CBC) policy to use an incremental approach to captioning, with the result that some, but not all, of its English language network and Newsworld television broadcasts are captioned. The Human Rights tribunal was not persuaded that the CBC has satisfied the burden on it to establish that the costs associated with captioning the remaining television shows in its broadcast schedule would constitute an undue hardship. The Tribunal ordered the CBC's English language network and Newsworld to caption all of their television programming, including television shows, commercials, promos and unscheduled news flashes, from sign on until sign off. The Tribunal held that the inability to access late breaking news stories - or weather warnings - can hardly be characterized as insignificant. Even access to television commercials cannot be characterized as trivial, as advertising has a significant place in the fabric of popular culture.
Protection of intellectual property rights
In Harvard College v. Canada (Commissioner of Patents), Harvard applied for a patent on an invention called "transgenic animals", being genetically altered animals containing a cancer-promoting gene (oncogene). Harvard sought to protect both the process by which the animals were produced and the end product of the process. The process claims were allowed by the Patent Examiner, while the product claims disallowed. The sole question before the Supreme Court of Canada was whether the words "manufacture" and "composition of matter," within the context of the Patent Act, are sufficiently broad to include higher life forms. The majority of the Supreme Court held that the best reading of the words supported the conclusion that higher life forms are not patentable. Also, since patenting higher life forms would involve a radical departure from the traditional patent regime, and since the patentability of such life forms is a highly contentious matter that raises a number of extremely complex issues, clear and unequivocal legislation is required. The current Act does not clearly indicate that higher life forms are patentable. The Court does not possess the institutional competence to deal with issues of this complexity, which presumably will require Parliament to engage in public debate, a balancing of competing social interests and intricate legislative drafting.
In Monsanto Canada Inc. v. Schmeiser, Monsanto patented a glyphosate-resistant gene and cell, creating canola plants that were resistant to the herbicide Roundup. Schmeiser, a farmer, never purchased or obtained licence to plant Roundup resistant canola. He found that he had some Roundup resistant canola on his land, saved seed from the crop and planted it in all of his canola fields the following year. He sold the canola plants for feed. Monsanto brought an action against Schmeiser for patent infringement. The Supreme Court of Canada allowed the appeal of Monsanto in part. The majority of the Court held that by collecting, saving and planting seeds containing Monsanto's patented gene and cell, Schmeiser infringed section 42 of the Patent Act. Therefore, Schmeiser deprived Monsanto of the full enjoyment of its monopoly and employed or possessed the patented invention in the context of their commercial or business interests. The Court was also of opinion that infringement by use did not require use of the patented genes or cells in their isolated, laboratory form. The propagation of the plants was a use notwithstanding that plants were living things that grew by themselves. Under the Act, an invention in the domain of agriculture was as deserving of protection as one in mechanical science.
At issue in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers was the compensation of musical artists and composers whose works were downloaded from the Internet. The Society of Composers was asking for the right to collect royalties from Canadian Internet Service Providers. The Providers argued that they offered the means to have Internet access but in no way regulated the content of the Internet or provided the means for the communication of musical works. As a result, the Providers claimed that they were not infringing the Copyright Act, which provides that persons who only supply "the means of telecommunication necessary for another person to so communicate" cannot be considered parties to a communication in violation of copyright. The Supreme Court of Canada pondered whether or not the legislature intended there to be copyright liability attached to every Internet communication with a "real and substantial connection" to Canada. The Court held that the means necessary for access to the internet such as connection equipment, connectivity services and software, etc. were covered by the Copyright Act so long as the Internet provider acted as a conduit and was not involved in activities related to the content of communications. The Supreme Court concluded that those who provide Internet infrastructure should not be considered as users for the purposes of the Copyright Act but rather as intermediaries.
List of cases
Archibald v. Canada (C.A.), [2000] 4 F.C. 479. Application for leave to appeal denied by the Supreme Court of Canada.
Auton (Guardian ad litem of) v. British Columbia (Minister of Health), 2004 S.C.C. 78.
Bear v. Canada (Attorney General), [2003] 3 F.C. 456. Application for leave to appeal denied by the Supreme Court of Canada.
Broomer v. Ontario (Attorney General), [2002] O.J. No. 2196 (Ont. Sup.Ct. J.)
Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 697 (F.C.A.).
Canada (House of Commons) v. Vaid, 2005 S.C.C. 30
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76.
Chaoulli c. Québec (Procureur général), [2005] S.C.C. 35.
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016.
Falkiner v. Ontario (Director, Income Maintenance Branch, Ministry of Community and Social Services), (2002), 212 D.L.R. (4th) 633 (Ont. C.A.).
Gosselin v. Québec (Attorney General), [2002] 4 S.C.R. 429.
Gosselin (Guardian of) v. Québec (Attorney General), 2005 S.C.C. 15
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703.
Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45.
Henry Vlug- and -Canadian Human Rights Commission- and -Canadian Broadcasting Corporation, Canadian Human Rights Tribunal, T.D. 6 /00 (2000/11/15).
Hislop v. Canada (Attorney General), [2004] O.J. No. 4815 (Ont. C.A.).
Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357.
Irshad (Litigation Guardian of) v. Ontario (Minister of Health), (2001-02-28) ONCA C31680. Application for leave to appeal dismissed by the Supreme Court of Canada.
Lambert c. Québec (Procureur général), [2002] J.Q. no. 364.
Lalonde v. Commission de restructuration des services de santé, 2002 CanLII 28552 (ON C.A.).
Lavoie v. Canada, [2002] 1 S.C.R. 769.
M.B. v. British Columbia, 2002 BCCA 142.
Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902.
Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66.
Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325.
Nova Scotia (Worker's Compensation Board) v. Martin, [2003] 2 S.C.R. 504.
Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City);
Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665.
Québec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228.
R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209.
R. v. Sharpe, [2001] 1 S.C.R. 45.
Renvoi relatif au projet de loi C-7 sur le système de justice pénale pour les adolescents, [2003] J.Q. no. 2850.
Rombaut v. New Brunswick (Minister of Health and Community Services), 2001 NBCA 75.
Shubenacadie Indian Band v. Canada (Canadian Human Rights Commission) (Re MacNutt) Chief and Council of the Shubenacadie Indian Band v. Attorney General of Canada, representing the Minister of Indian Affairs and Northern Development and Canadian Human Rights Commission, [2000] F.C.J. No. 702 (F.C.A.). Application for leave to appeal denied by the Supreme Court of Canada.
Syndicat de la fonction publique du Québec Inc. v. Québec (Attorney General), Québec Superior Court, no. 200-05-011263-998, February 4, 2004.
Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 S.C.R. 427.
Solski (tuteur de) c. Québec (Procureur général), [2005] S.C.C. 29297 (Casimir no 1) United Food and Commercial Workers, Local 401 v. Alberta Human Rights and Citizenship Commission, [2003] A.J. No. 1030, 2003 ABCA 246.
Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519.
2 The Canadian Charter of Rights and Freedoms or the "Charter" are used interchangeably in this review of jurisprudence.