 This is William Chao. Welcome to Legal Fundamentals, Module 1, Part C. In this part, we will look at the Charter of Rights and Freedoms in the Constitution. The Canadian Charter of Rights and Freedoms is meant to protect our human rights, but it does not protect those rights from being infringed by just anyone. It only applies to governments in Canada, and that's because of Section 32, Subsection 1 of the Charter, which says essentially that the Charter applies under paragraph A, it applies to the federal government, and under paragraph B, that makes the Charter apply to each of the provincial governments in Canada. So the Charter applies only to anything a government does in Canada, and a government includes the federal government, the provincial government, and also municipalities. Municipalities are not mentioned in Subsection 32.1, they are caught or they are captured within paragraph B, which captures provincial governments, and all matters within the authority of the legislature in each province. Municipalities or municipal governments are created by provincial governments. Municipalities get their law-making powers from provincial governments, and that's why municipalities are covered by paragraph B. Because the Charter applies to any government law or action, any government in Canada cannot do anything that violates a protected Charter right or freedom. So any law that's passed by a government in Canada, if it's found to be contrary to the Charter, that law is invalid. Because the Charter only applies to government law or action, the Charter does not protect against human rights violations by businesses, private individuals, or other non-government organizations. Human rights codes would apply to protect against human rights violations by parties such as those. The Charter protects many different rights and freedoms. We won't talk about them all, but we will focus on a few that are directly relevant to business. The first of those rights and freedoms is the freedom of religion. There used to be laws in various provinces including Ontario, which banned stores from opening on Sunday. So the Supreme Court eventually, in the case of Big M Drug Mart, ruled that those laws were unconstitutional since it violated freedom of religion. Another freedom is freedom of expression, or people also refer to it as freedom of speech. Freedom of expression protects many different types of expression, including commercial expression which would encompass advertising. So there have been several cases involving business advertising that use the freedom of expression to strike down a particular law. In a case that we will look at shortly, the case of Irwin Toy, the Quebec government passed a law which banned advertising to children, and that law was challenged as a violation of freedom of expression. In another case, there was a law that was passed by a municipality which banned all ads placed on hydro poles, and we will examine that case as one of our weekly case problem discussions. Another case that we will look at in this module involved the city of Montreal which fined a strip club from making announcements through a loudspeaker at its entrance. Another freedom that is relevant to business is freedom of mobility. So freedom of mobility protects someone's right to work and live in any province in Canada. There was a case where Alberta law firms challenged a law which prohibited law firms in Alberta from partnering with non-Alberta law firms. So that law was challenged using freedom of mobility protected by the Charter. Another important right that is in the Charter is called the right to equality. The right to equality prohibits discrimination on various bases including race, sex and religion, but notably it does not prohibit discrimination based on economic circumstances including poverty. An example of a business case involving the right to equality is a case called Andrews which challenged a British Columbia law which prohibited non-Canadian citizens from practicing law as lawyers. I stated before that the Charter protects many different rights and freedoms but there are some specific interests that are not protected by the Charter. The key omission from the Charter is any kind of protection for economic and property interests. There was a conscious decision made by the various governments that negotiated the Charter that economic and property interests should not be protected by the Charter. The official explanation for this omission was that they did not want to hamper any government's ability to protect the environment or to regulate the use of property to control resource based industries or to restrict foreign ownership. The Supreme Court of Canada has also confirmed that economic and property interests are not protected by the Charter. It is said that there is no unconstrained freedom in economic activities. The way the Charter is set up can be best described as a balancing act. On the left side of the scale or of the balance we have individual interests such as freedom of expression, freedom of religion and all the various rights and freedoms that are protected by the Charter. On the other side of the balance we have societal interests and the way we usually express societal interests in our system is the laws and actions that are passed by the governments that we have democratically elected. The legal mechanism contained in the Charter to express or to reflect societal interests is section one and the notwithstanding clause. That balancing act can be more precisely explained by saying that Charter rights and freedoms are not absolute but are limited by societal interests. Now how are they specifically limited by societal interests? The major legal mechanism that is used to limit Charter rights and freedoms is section one of the Charter. What section one essentially says is that a government can place reasonable limits on Charter rights and freedoms that are demonstrably justified in a free and democratic society. And we will look at a few cases where we go through the process of applying section one to determine whether or not a government has reasonably limited a Charter right or freedom. The other way that the other legal mechanism that is in the Charter that allows societal interests to limit individual rights and freedoms under the Charter is something called the notwithstanding clause. Notwithstanding clause is a bit of a counter-intuitive clause that's contained in the Charter. What it allows, it allows a government to just override a Charter right or freedom by declaring the infringing law to be valid notwithstanding the Charter. So all they have to do is that they acknowledge that a law that they've passed infringes the Charter and all they have to say is that notwithstanding Charter, we don't care, this law is valid. That is enough to make the law valid under the Charter. Now this clause historically has been rarely used. The way it's set up is that if a government wants to use this clause, it's only effective for five years. So after five years, they have to pass another new law which uses the notwithstanding clause to make that law continue to be valid under the Charter. A notable example of the use of the notwithstanding clause is by the Quebec government. Quebec government many years ago passed a law requiring all business signs in Quebec to be in French only. You could not have a sign that was in French and English. You could not have a sign that was in Chinese or Spanish or anything. It had to be purely French and that law was challenged under freedom of expression. It was declared to be invalid under the Charter and then the Quebec government turned around and passed the law again. But this time adding that it was overriding the Charter, that the law was valid notwithstanding the Charter. And that was enough to make that law valid. But that use of that notwithstanding clause is only good for five years at a time. How do we go about applying the Charter to any particular case or situation? There are three specific steps that we need to take. The first question that we ask is does the Charter apply or in other words does it apply at all to the situation? The rule that we've looked at already is that the Charter applies only to Canadian government laws or actions. It does not apply to private businesses, individuals, or other non-government organizations. And we also know that even if it does involve Canadian government law or action, the Charter does not apply if that government law invokes the notwithstanding clause. So if we do determine that the Charter does apply, the next question we ask is does that government law or action infringe a Charter right or freedom? To answer that question we have to look at the specific rights or freedoms that are contained in the Charter. Some of the ones that we've talked about already are freedom of expression, the right to equality, and freedom of mobility. So if we do determine that a specific Charter right or freedom has been infringed, the next question, the next and last question we ask is, is the infringement of the Charter right acceptable as a reasonable limit under Section 1 of the Charter? What Section 1 does is that it allows a government to legally infringe a Charter right or freedom if it is, quote, considered a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. The way that we apply that rule, that reasonable limit rule in Section 1, is that a limit on a Charter right or freedom may not be reasonable if there is another way of achieving that law's purpose or objective, but without as much infringement of the Charter right or freedom. So we have to think a little creatively. And to see, you know, is there a better way that the government could have achieved the same purpose or objective without stepping on as many toes in terms of infringing a Charter right or freedom? Let's look at some cases to illustrate Charter analysis by the courts. The first case we'll look at is Irwin Toy in Quebec. This is a decision of the Supreme Court of Canada in 1989. This involved a law that was passed by the Quebec legislature which prohibited all advertising aimed at pre-teens. The purpose of this law was to prevent commercial exploitation of children whose minds are considered to be more open to suggestion than the minds of adults or teenagers. The Irwin Toy Company challenged the constitutionality of this law. The first question that the court dealt with was did the Quebec government have the power to pass this law under the division of powers set out by the constitution? So the court said that the federal government has the power to regulate television under the residual power because television is not mentioned anywhere in the constitution so it falls under the residual power. Residual power belongs to the federal government. The court also said that provincial governments have the power to regulate advertising under property and civil rights. Remember property and civil rights is a major power exercised by provincial governments to regulate business transactions. So what the court ruled here is that the law, this provincial Quebec law, is a valid exercise of provincial power by the Quebec government. The law had only an incidental relationship to television therefore it is not ultra-virus. So in other words Supreme Court of Canada said that the Quebec government did have the power to enact this law. The next question that the court considered was is this Quebec law valid under the charter? To answer that question we need to look at some more specific questions in our charter analysis. The first question is does the charter apply to the law? The second question is what charter right or freedom was infringed by this law? And the third question is is the law a reasonable limit on freedom of expression under section 1? Please pause this video at this point to try to work through these questions on your own. The first question, does the law, does the charter apply to the law? This law was made by a government in Canada specifically the Quebec government. Since the charter applies to any government law or action in Canada the charter does apply. The second question, what charter right or freedom was infringed? The court said that the law infringed freedom of expression since it prevented Irwin Toyer from using television to tell children about its products. The third question is the hardest question of the three to determine. Is the law a reasonable limit on freedom of expression under section 1? Here the Supreme Court of Canada said the law is a reasonable limit on freedom of expression because society has an interest in protecting young children from commercial exploitation. That was the valid purpose of the law. The ban on advertising only applied to commercials aimed at pre-teens but did not prohibit commercials aimed at adults or teens. So what it was saying is that the law banning advertising to pre-teens was reasonable in that it did not prevent Irwin Toyer from advertising its products at all. They just had to advertise to people other than pre-teen children. So the final conclusion is that the law was valid. So here is a picture from Google Street View of St. Catherine Street in Montreal which is a very busy commercial street. The entrance to the strip club is right there in the circle. The strip club in this case challenged the validity of the noise by law by using the charter. The question that the court had to answer was, is the noise by law valid under the charter? The specific questions that we need to answer for our charter analysis are, does the charter apply to the law, what charter right or freedom was infringed, and is the law a reasonable limit on freedom of expression under section 1? At this point please pause this video so that you can work through these questions on your own. For the first question, does the charter apply to the law? The law was made by a government of Canada, specifically the city council of the city of Montreal, and therefore because of that the charter does apply. So that was fairly easy question to answer. The second question, what charter right or freedom was infringed? So this is another relatively easy question. The law infringes freedom of expression since it prevented the strip club from advertising through its loudspeaker. The third question, which is always usually the toughest question to answer in the charter analysis is in applying section 1. Is the law a reasonable limit on freedom of expression under section 1? Now in this case the Supreme Court, which is made up of a group of judges, they split up into two groups. We had a majority of judges rule one way and a minority rule a different way. So the majority is the one that determines the final outcome of the case. The majority of the Supreme Court said that the law is a reasonable limit on freedom of expression, therefore it's a valid law. So the Chief Justice speaking for the majority said that noise pollution is a serious problem in urban centers and cities like Montreal. So Chief Justice was saying that this is a valid purpose for the noise by law. And he said, you know, are entitled to act reasonably and responsibly in seeking to curb it. Speaking for the minority, the another judge who we call a dissenting judge said that the law is not a reasonable limit, therefore valid. Because it effectively outlaws everything from playing Mozart softly through an open window to annoying cell phones ringing in public places and even squawking baby alarms. So what that judge was saying is that this noise by law is too broad, it goes too far, it's not reasonable and therefore should be invalid. So given these two points of view between the majority and the minority, what do you think? Which judge do you agree with?