i was once told that if i was to do media that wasn't live and i didn't like what i said to just swear because then no one can use the tape so just know there are a whole bunch of mistakes that end with just a litany of profanity so i can't use them uh last night i had a whole bunch of issues with filming things just kept going wrong whether it was phone calls or alarms or major mistakes and tonight i thought i'm just gonna power through this video and get her done it ain't happening i'm on take five but that's okay i think this is the one and if it's not you're not gonna know because i'll swear my my face off at the end and then you'll never see it unless i make an outtakes video someday today we're going to talk about how we enforce charter rights but before we get into that i want to do a quick review so the few things that i think are really important to just highlight here number one we got to keep in context the background information when talking about constitutionalism rule of law all those things are still relevant because we're talking about the charter which is part of the constitution it's also important to remember the supremacy clause that things have to be consistent with the constitution to be of force or of effect and here if we have charter cases where we find that it's a violation of the charter right of no force or effect it's part of what enforcement is about what do you do in that situation we also got to keep track of this that the charter added something to the constitution but it wasn't the first time we've protected civil rights it just made them entrenched in the constitution and that the charter protection only extends to so many things and is only against the state and then finally and importantly we have to remember that there's interpretation involved and sometimes it's in the interpretation we get some really interesting analysis in the course that's all kind of review but it's important to keep in mind as we think about what's going on so for today what we're going to do we're going to start by talking about how an actual case happens now i'm going to give you a brief insight to this for a couple reasons one we don't spend a lot of time i know you've talked about cases a bit before i believe anyhow and second i got asked if i was a practicing lawyer before and i wasn't i don't go to court that's not what i do i'm an academic so far be it for me to tell you how it actually happens in court instead i'm going to tell you about kind of how they fall they come about in the various components of the case just so you know how to follow it and when i was in law school my contracts law professor would draw cases out in a pictorial form it's actually a great way to learn how to keep track of what's going on and arguments and who's arguing what because we're only giving you parts of cases some cases are very very complicated with multiple people involved multiple counter claims etc so sometimes drawing it out is really important the second thing we're going to talk about are the parties to a charter case so who's actually involved the case involved in a case sorry and then we're going to talk about section 24 which is the enforcement provisions under the charter itself so you should read that although i'll provide some some of it on the screen and then we are going to talk about remedies what happens when there's actually an outcome how do we have a remedy for a charter violation and then finally we're going to talk about the case now the case here is a great case to practice reading a case so here's what i'm going to do i am going to give you the overview in broad strokes of what this case actually says and why it's important and i would like you to read this case and read it carefully and make sure you understand this case is a way to practice reading cases during the live q a i had a lot of questions about should we read the cases how much do we need to read the cases should we memorize them and i said make sure you can explain what's in the slides that's my perspective so this is gonna be great practice because i'm gonna give you some of what the case says and then put it into your court to read it and actually try to discern as best you can what the case is about now the good news is there's another live q a coming up and i can answer more questions about it if need be so stay tuned if you don't quite understand all this but i think if you go back to the case and read it carefully you'll do okay so first thing how does a charter case happen well first off don't forget the charter is about protecting individual rights and freedoms so charter case arises when individual rights and freedoms have been violated or infringed with or interfered with in some capacity the extent of the interference doesn't necessarily matter and interference with the right is an interference it may not seem important to you or i but it could very well be important i had the great pleasure of doing a radio show this summer i did a couple media interviews but one of the radio shows i did was with one of my most favorite radio hosts of all time named jim jim richards from news talk 1010. and it's not the kind of station i would listen to normally but i really like this host and i got asked to be in a show and he was subbing in and i was just thrilled to talk to him but one of the things i was talking about on that radio show was whether or not the masks are a violation of rights and part of this stems from a lawsuit filed against the government of canada and the provincial government and just what everyone else that claims coronavirus is a hoax put that aside for a minute and and one of the things i said in this interview and other interviews i did around that time was that i may not understand why this is important but there are legitimate claims so in this lawsuit there were people that said i don't want to wear a mask and some of the reasons why i'm not going to lie aren't very convincing but there are a couple uh plaintiffs that had really compelling cases one was a woman that said i was once sexually assaulted and someone held something over my face and prevented me from screaming and so that feels constricting and it's triggering for me another was a young man who had autism and didn't function at a level higher than four or five years old and didn't understand the reason for the mask and it was very confusing you may not find a violation very compelling but that's really irrelevant it's not you to decide it's for the course to decide whether or not there's an infringement remember back to oaks you first define the right and then determine if there's an actual infringement so charter cases arrive because there's an infringement on reds and because it's a charter case it has to be an infringement by the state as you may recall one of the limits of the charter that only applies to the states i feel like i'm talking really fast right now so i apologize i'm going to take a step back i'm going to slow down what's interesting is that i actually have had some students in my other class tell me they watch my videos at a faster speed and for some of their lectures they watch it speeds two or three times faster than it's delivered and i said good luck with me i talked so fast you couldn't do that so i apologize for talking fast i will try to slow down so we have the reality is that the government has done something to interfere with the rights and freedoms of an individual that are protected and so we bring into this equation the fact that that's how the charter case arises by default it's just the government has interfered with rights now there's a bunch of ways that they can arise so one of the ways that a charter case could arise is in the nor the normal or ordinary enforcement of law so for example someone could stop you search you put you in the back of a cruiser with any without any grounds and you could claim that's a violation of your section eight rights to unreasonable search and seizure right so there are ways that your charter rights may be violated by how you're dealt with in the normal course of law enforcement there's also a possibility that a charter violation will arise because of a law that's actually passed and so we have a law that how that is a new law let's say hypothetically that actually is violating a right so a law could be around for a long time it could be perfectly constitutional and it could survive charter scrutiny on its own but it's the application the enforcement of that law that is the problem or it could be that the law itself is flawed and in some way violates a charter right and so these are different ways that a case could actually arise this is important to point out that a charter case can be enacted even if the law is not being enforced the fact that the law is not enforced is actually not germane to the question of whether or not it's a violation of rights if it has the possibility of violating rights then it's under consideration by the courts as to whether it's an actual infringement now the courts can make a determination on that point but you don't have to demonstrate that the government's actually enforcing a law to demonstrate or to make an argument sorry that there is a charter violation so charter violations could arise in a lot of different ways in your criminal law section you're going to talk about the charter because there are many many instances of how charter violations have impacted the criminal law and we talk about sections seven through fourteen being about uh legal rights so arbitrate attention or not being informed of your rights or self-incrimination all these things are important parts of the rights package that now inform how a case could arise and in the criminal context there are probably more charter cases than anywhere else i don't have empirical data on that i just i think i know it to be true because there's just so many cases that are involved the charger and charter in the criminal context so if we want to take an example this is an example i made a couple years ago when i first started teaching this class and i've left it in because i didn't know who to pick on um so i pick on nickelback and maybe you're a nickelback fan and if you are i'm very sorry for that now maybe nickelback doesn't deserve the scrutiny they've received but at the same time they kind of do so if you love nickelback maybe close your ears and pretend just read the slides and put someone else's name in there i don't know someone you don't like i don't know who's hip with the kids these days or who's being you know scorned by the kids these days so nickelback is still my best example so imagine the state in axa law that bans the playing of nickelback in all public places you want to like nickelback listen in your own space private space we're going to ban the listening nickelback in all space so this could arise that there could be a charter claim that comes around in the norm normal ordinary law enforcement side or it could be that there is uh you know so here would be a challenge uh if someone is charged listening to nickelback right so you could have the ordinary law enforcement and the actual act that brings about the charter claim is the fact that you've been charged in a public place listening or you could actually challenge the law itself you could say the law itself irrespective of whether it's ever been enforced is a violation of rights so this is the example of how this could arise right so either the in the enforcement of law or the enactment of law both can actually be charter violations now you really love nickelback you're the president of the fan club so you are going to launch a charter challenge and say this is unfair this is unconstitutional it's violating what what would this be violating he said freedom of expression you're right unfortunately you have the freedom to express yourself by listening to nipple back so it's possible that you would bring a challenge to this law so who are the parties to a charter case we're going to come back and nickelback to talk about that in a second but there are a couple different parties that are important to identify the first one is the person making the claim the person that has the claim that their rights have actually been violated and we often talk about this person as a plaintiff or the applicant or the complainant sometimes there's a person that's making the complaint so plaintiff is usually that the term i like to use was just consistent across public and private law but other people have different uh ways of talking about it i just person making the claim i think is relatively straightforward and and often it's against the state because why it has to be it's a charter claim so if you're making a claim that your rights have been violated under the charter then you're making the claim against the state and in this case the state is the defendant right so state is the attorney general typically in the province or the or in the federal attorney general and they have the response uh or the responsibility story of responding to the claim so sometimes we call them the respondent but they're also the defendant they're putting it forth a defense to the claim that there has been a violation of the charter and it looks a lot like other litigation perhaps you're familiar litigation i don't know but you're going to see a lot of other cases where you have a party against the party sometimes there's many parties but in charter cases it's always going to be against the state because that's the only way the charter has any application now there are lots of things that could be said about litigation and i am not going to go into a long time rate about this i could but there are many challenges with bringing forth litigation early on in my legal career i wrote a paper about secondhand smoke in multi-unit residential dwellings and i argued that and it is it's a breach of the what's called the covenant for quiet enjoyment i.e if someone's secondhand smoke is seeping into your apartment your landlord has an obligation to ensure that doesn't happen and i wrote a paper and submitted to her law journal and i said people should just sue and the response i got from a viewer i don't remember even which long journal it was now many years ago was uh how this is naive you should never sue you should never sue suing is hard is so much work and it's true suing takes a long time takes a lot of resources it takes a lot of energy and it can have really negative outcomes and you might lose right so there are a lot of challenges with with lawsuits but there's also in this context there's something that is more important here because it's standing up against the state right because there's often uh people that are willing to help represent these types of claims there's also just certain parties that are willing to go to bat to say look this is not fair why our law has evolved in some of the ways that it has is because applicants have put forward or plaintiffs would put forward a complaint that hey i can't get access to medical assistance in dying and that seems to me to be a violation of my charter rights and they challenged the law and in time over time they win and the law changes it's actually a really important part even though it is very difficult but the reality is is it is very difficult there's a case that i i've studied in the past uh i remember the exact name so forgive me but the details are what are important and it's a woman who sued uh a theater in belleville for not being wheelchair accessible so this woman was in a wheelchair and couldn't go to the theater because of the inability for her to actually access it so she sued uh the theater for not being accommodating and the theater fought her now the reason why the theater fought her is because the theater had a long-term plan of building a new bigger complex it was planning to tear down this old one so rather than spend the money to retrofit in the meantime it just fought this individual now imagine for a second if you were a media company and you're relying on newspaper you know revenue for advertising i don't know new movies or trailers on tv who do you think you're gonna side with overall now that's maybe skeptical on my part but the reality was is this woman was dragged through the mud she was treated terribly she won but didn't matter because the damage to her life was already there in her community she was scorned she was treated poorly and and the reality was that the court sided and said yes this should be something that there's access for all people otherwise there's a there's a legitimate discrimination claim here now it wasn't quite a charter claim but the point here is that even when you fight for something that's right it doesn't mean you're going to win and even if you win it doesn't mean that it's going to be okay the other example i'll give is is vrind i mentioned the case last day in talking about limits and about i believe it was last day maybe in the interpretation lecture i don't recall now but dreamed is a case where the man was fired for his sexual orientation and he fought and the supreme court upheld that the idea that the alberta human rights law needs to include protection for same-sex uh couples are for sexual orientation and so at the end of the day vreen won but the case took almost a decade or longer and and he was part of national media stories he was you know in a province that as i mentioned in the last video about notwithstanding clause did use the notwithstanding clause to prevent same-sex marriage so clearly there are some deeply rooted ideas around around lgbtq plus lgbtqt plus i missed some stuff in there i'm so sorry um and and the reality is is that at the end of the day vreen won it changed the law it informed our perspective around sexual orientation now that sexual orientation is automatically read into the charter but it was devastating and 10 years after the victory i remember i don't know where the article is it might be in my office and i don't go to campus i believe it's in my office there's a story i cut out about green having moved to europe because no one knew who he was there because there was such an impact from having that case so the reality is there are cost to litigations that are important to recognize now i mentioned this already before in the constitutional lectures but there's also presumption that legislation is constitutional we start from the starting point the laws are valid when they're enacted and therefore the real onus is on the plaintiff to demonstrate this is a violation and so in a case the plaintiff actually has to demonstrate that there is a violation so the onus is how we talk about that the burden of proof there's different ways you could frame it but it's on the plaintiff to make the case to demonstrate this now once the plaintiff does demonstrate there's an infringement the onus shifts to the state to demonstrate that that infringement can be justified under section one so it's not that the state doesn't have a responsibility but if the plaintiff can't even demonstrate that there's been an infringement of rights the case is done there's no need to justify that infringement because there's no infringement right so the onus is on the plaintiff at the outset so this is actually really really really important to remember that the starting point is for the person making the claim to prove it now there's another party that we're not talking about in this structure of of one side against the other and that is the role of interveners sometimes there's a really big issue at stake in a particular case we're going to talk about a case around hate crime just briefly and and in that hate crimes case like there's a lot of interveners because hate crime there's a lot of at stake for people don't want to protect free speech and also people that want to maybe put people that are are saying things uh that are you know maybe uh inciting violence against others or et cetera and have a stand against it so sometimes the case is about more than just the parties it's about more than just the individual who claims that their rights been infringed in the state there's other parties that get involved and so we often have interveners get involved in cases and so if you look into the saskatchewan versus what case in your tax under freedom of expression you'll see that there is actually a very long list of interveners that are involved and usually simple the civil liberty organizations are the ones that will intervene but it could be a variety of interveners that are that are at play it could be christian organizations it could be other religious organizations it could be libertarian organizations it could be the list goes on and on and on about people that may feel like they have a stake in the case or a position to bring forward and generally interveners are involved to bring a new perspective that perhaps the applicant is not bringing on their own so for example if someone was to say that the nickelback law was unconstitutional it violated their freedom of expression as an individual as a fan club leader you might also have recording industries coming out and saying actually we want to intervene because this is going to hurt our our bottom line maybe or might hurt our recording artists you may also have radio stations intervening saying well how do we know what's being played in the public place and and so on and so forth so we have people that are involved and they don't have any control over the litigation they don't have any input and even their way of being involved they might just have an opportunity to put in written submissions sometimes they can appear before the courts but that's up to the court to determine but they actually just present their argument to try to help the court give context to the actual dispute and and allow for there to be other perspectives brought to the forefront um and these organizations uh get involved because they feel like it's important because and one of the things that demonstrates that is they have to pay their own way they have to pay their own costs and so it could be very expensive to actually put this forward and so it's not something that's taken necessarily lightly it's people that actually really believe and i and i have an ongoing issue right now the friend i've been discussing where he's involved in litigation he's actually looking for an intervener to step in to say look this is important and we've been talking about who that might be sometimes you need that intervener to demonstrate this is bigger than the one plaintiff the one applicant that's before the court now um i should mention before i go on to this maybe just mention very quickly and it might be coming up in a future slide so i apologize if i've just forgotten my order my science that does happen um that there is a need to have standing in order to bring a challenge to the law at the outset a party actually has to have standing which means they have to be able to demonstrate that the law impacted them in some way shape or form and there's a bunch of different ways that this plays out i have a feeling it might be coming if it doesn't um i'll come back to it so forgive me for my brief foray into madness here this is normally where i'd stop a video go screwed up and then i forgot the order of my slides but this happens there's a lot of slides going through my brain right now i have this class and two others and a whole bunch of other stuff so forgive me for my mistakes now interpretation is up here this is a review only because it's important to remember in all these discussions that there is a role of interpretation that is at play at all times by course they have to interpret you know the rights that are involved to even determine whether or not someone does have standing for example so that is an important uh reminder here it's just here to remind you that interpretation is always at play so this is not standing so let me just return to standing for for just a moment um there's generally a couple ways that a court will recognize that a plaintiff has grounds to bring a claim and one is that there's a serious constitutional issue at stake so sometimes the court recognizes that this is actually a very serious issue and we need to address it irrespective of whether or not it's personally affected this individual because it might actually have the potential to affect that individual or or nevertheless it's an important issue to play obviously if the plaintiff is directly affected or has a genuine interest in an issue then the courts will recognize that as potential infringement but there's also possibility that courts will allow parties to come before them and there's no other reasonable way for that party to actually bring the issue before the court so there might not be another way so the court has the ability to determine who has standing who's allowed to appear now we talked a minute ago about the nico back case let's put the parties we just talked about into perspective here so in the nickelback case imagine now that chad krueger himself was like i don't like this law so chad kruger decides that the plaintiff the applicant the challenge the ontario attorney general who enacted this law and so krueger is the plaintiff and attorney general is the defendant now uh in in this particular situation we would have kruger first making the argument that there is an infringement and then if that's determined attorney general of ontario having to argue that the infringement is justified so let's imagine here that krueger wins so let's not talk about the what happened and like unfortunately kruger wins and nickelback is allowed to be played back in society so cougar wins that may not be the end of the story because we have appellate court so it's important to recognize how the language changes and who's bringing the claim and how that might affect how we talk about individuals in court based on what stage and court they're in so if kruger were to win and the ontario ontario attorney general uh was going to appeal the decision well suddenly now the attorney general becomes the appellant so that's how we would refer to them the appellant the pellet stage is that they're the ones appealing so they're the appellant and kruger would become the respondent now that's important because this could happen again that krueger would lose this time and he was to appeal then he would become the appellate to the supreme court and the respondent would be the attorney general of ontario so it's important to keep track and that's why my contract prof used to draw it out and i'm really confusing moments of cases sometimes i do the same i draw out the schematic of how this is actually working out courts have gotten a bit better at using parties names at one point in legal writing and old cases if you read them they just refer to the respondent and the appellant and it actually can be really frustrating like just use their names but nevertheless this is kind of the parties this is how it would work god forbid that nickelback wins this so sometimes just draw it out you want some hints there's a nice little hint draw it out if you can um all right so this is all uh kind of now just the same sort of yeah i knew standing what's coming but you just hate that you know something's there and then you keep then you panic so sometimes when i cancel these videos or i stop recording it's because i panicked and i can't remember what's next because i don't want to keep looking down the the laptop's over there with i suppose the preview but i'm not sure if you notice but i often have to lean in to read things because uh i'm not i'm fine i can read but i i don't have great eyes and so i can't read what's coming but so i knew standing was coming uh so here it is again this is the stuff i just talked about a minute ago um but to be involved you have to be affected by the law okay moving on so and interveners are here i didn't remember this was even in here this is the problem with creating slides a long time in advance and then presenting them and i i'm not gonna lie i didn't click through them tonight i just kind of put them up there i knew so that's my mistake and i'm sorry for that but um 20 something minutes in i'm not restarting and i hope you can forgive me and if you can't that's on you that's really just on you so all right this is a if you want to see some interesting intervenor stuff you should look back to a case trinity western university had a case uh involving their student code of conduct where they were trying to prohibit students in attending or they have a code of conduct that prohibits students attending from being in homosexual or non-heterosexual relationships of any kind and they're opening a law school there's a whole bunch of interveners that were involved arguing on both sides it's a really great example of the types of interveners that can become involved in a situation so if you're interested in this further please go there those slides were fast because i already did them okay so now the case is over kruger won let's say unfortunately so how do you actually enforce uh enforce your rights so section 24 of the court reads anyone whose rights or freedoms as guaranteed by this charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances now this is not maybe very helpful because all it's really saying is that there is an ability for the court here to to give a remedy right so what would those remedies actually look like now section two says where in proceedings under subsection one a court concludes that evidence was obtained in a manner that has infringed or denied any rights or freedoms the evidence shall be excluded if it is established that having regard to all the circumstances the admission of it in the proceedings would bring the administration of justice into disrepute this is going to be really important in your criminal law context when you learn that later on the term this is where a lot of evidence gets tossed out of court in a criminal case because the question becomes if there was an infringement of a right to get that evidence then the infringement of the right has to be accepted as a permissible thing in order to obtain evidence to use it but of course we don't want to accept that infringements of right our rights are permissible so if it's going to bring in the the system of justice into into question or into disrepute then that evidence will be struck from the record in a lot of criminal cases this is important because evidence that might otherwise be you know damning or or difficult or sometimes just directing a jury or a court into a decision that is wrong because the evidence might be flawed maybe actually the issues with the evidence suddenly now that evidence can be tossed so these two provisions of the charter uh enforcement are very very important so uh it's important to recognize that there there's two things that could happen here so you can petition the court for remedy or you could have evidence in proceedings be tossed out so again criminal context here's is is very important so what are the actual remedies well the first is relevant based on the supremacy clause right things are inconsis inconsistent with the constitution there have no force or effects which means that uh if if a law is deemed to be unconstitutional for its infringement it's of no force or effect and that has a couple different potential implications the first is my slides are not working there we go is this idea of striking down courts can actually strike down legislation now that can mean a couple different things they could depending on the acting question strike the whole thing say this whole thing is garbage it's infringing in all sorts of ways gone more likely what they're going to do is strike down the offending sections remember 52 says that should be to the consultation that to the extent of the inconsistency so only things that are inconsistent need to be struck down so i've given you some examples already before of this with the tobacco act which had some principles or some provisions that restricted advertising that the court found to be unconstitutional so the court struck those from the legislation now ultimately finding those provisions unconstitutional kind of gutted the imp the importance or the intention of the legislation so that just the government went back and reworked it and we're going to talk about that in the bonus lecture but you can strike down legislation you can actually strike down or sometimes just take out the parts that are offensive now you recall from some of the cases we discussed like manitoba language uh reference that sometimes the court recognizes that just removing things is impossible because it creates chaos or a legal vacuum so there can be a declaration or suspension for declaration of enforcement a great example of that is when the supreme court of canada in carter struck down the provisions of the criminal code that prohibited assisted dying so essentially that would criminalize anyone that assisted with the death of an individual the court also said we're going to just suspend our declaration for six months to give time for the federal government to enact new legislation to ensure that we don't just have this gap in the criminal code because had the court just struck it down then anybody could assist anyone in their death and not be criminally liable and there's all sorts of dangers that could come from that including coercion and manipulation so the court instead said we're going to wait six months and give the federal government time to amend the legislation as it turned out they needed a bit more time but ultimately the the federal legislation allows for certain very specified professions doctors um uh primarily but others as well to assist with dying but not just anybody so they struck it down in a sense that they they allowed for it to exist for a little while through um by suspending it now striking it down is is an it's an invalidation of of of the entire after the offending parts that's a pretty strong heavy-handed response so we don't always have that approach in other instances there's an ability to interpret the legislation in a way to render constitutional so you interpret in a way that allows for that con that law to remain constitutional and this can be done in a couple of different ways the first way is that you can read down legislation so legislation that is very very broad right you can read it down to make it more narrow so that it may not be as offensive and may not be um thanks to the constitution anymore this is an attempt to try to keep the legislation in place without having to strike it down or invalidate it you just narrow the scope of what is actually going on and so this is really important for legislation that is over broad there's also a possibility of reading in now this is a bit more controversial because in the ring case that i talked about when the supreme court of canada said the alberta human rights law was inadequate in that it didn't provide protection to sex for sexual orientation i.e that there wasn't a way for people that were discriminated against based on their sexual orientation to seek recourse through the courts the supreme court of canada rather than striking down the human rights law said we're going to read sexual orientation into the law we're going to assume that it's just there but not written out officially this is sometimes controversial because essentially this means that judges are writing legislation and there are many that say well that's not the role of the course the court's job is not to create policy and so this is sometimes viewed uh with some skepticism and so it it's often used for situations with under inclusivity but but it's got to be approached with caution because the fact that it's under inclusive may be intentional by that democratically elected government and so the court's reading in is now putting words in that government's mouth or maybe it's better just to strike the law but there's a delicate balance here because obviously the alberta human rights law is important and couldn't be struck down and it wasn't that the the the language in the act was in violation of the charter it was the absence of protection that was deemed to be uh violation of the charter so some scholars look at reading in as being kind of an amendment to the law they don't really like that but i think it's also maybe a bit of a harsher criticism that needs to be because sometimes the law is just absent what if it's a perfectly legitimate law but our social understanding has shifted now i have colleagues and scholars i've worked under are studying before that would would not accept that interpretation but but the reality is that there is this opportunity to read into the law to add something to make it constitutional so this is a an important but controversial tool that the courts have section 24 1 said that the courts can give appropriate and just remedies well that doesn't help us much but some of these might be in the form of a declaration or perhaps an injunction an injunction is an order to stop doing something a declaration is more of the court makes a a statement um about the issue or it could come down to damages and damages is just money this is the language of remedies by and large in the courts more often than not you're getting money but how do you actually determine the value or the cost that you should be compensated for a violation of your rights but there are different ways so a court might take under consideration an applicant's claim that this is not money won't solve this instead we want an injunction we want them to stop doing something or declaration or some other remedy that actually gets at the problem so there are different approaches to this all right let's talk about the case now i've already mentioned this is a great case for you guys to to spend some time in reading so i'm going to go over it right now and just talk about it for a few minutes and then i would like you to spend some time really digging in and reading it carefully and making sure you understand how this is relevant to the enforcement of the charter so here we have a case where a father who had a newborn a newborn trip excuse me the newborn child was denied benefits for uh parental leave under the unemployment insurance act he applied but was denied and and the the the act applied to mothers but also provided some provision for adoptive parents so there were provisions in place for mothers and adopted parents but not for for fathers and so what is the charter claim here do you think so the father's saying i've been denied equal access to this benefit well we haven't talked about section 15 but if you read the charter as suggested you might have thought this is an equality issue but the claim here is this is an infringement of section 15 because they have not provided equal access to this benefit and so um that's really what this case is about and the supreme court of canada agreed uh that the infringement um to the to equality had occurred in in this instance and then said that well remedy and identify that there are three questions that must be answered uh when there is uh an issue of an infringement which triggers section 52 and that these questions are really about our guidelines for informing the court they're not definitive rules they're guidelines so the first question is what is the extent of the inconsistency and this will be determined by where the legislation fails in the oaks tests so remember there's four parts of the oaks test the court said the extent to which there's an inconsistency will uh be determined by these four tests and so if we have a pressing and substantial objection test or rational connection test failure the court uh has said that these are um remedies here will be interpreted broadly and it gets more narrowly as we go down so with pressing and substantial this is why i want to read this case this is not fun stuff by the way this is where it gets into technical matters and sometimes can be very confusing and i expect that we're going to talk about this in the next live q a but that's why i think it's really important to dive in to see if you can figure it out because if you can figure out this case you're going to feel great about yourself um if the if the if there is a failure at the first step which i mentioned the other day courts typically accept that governments have pressing and substantial objectives here then you interpret the inconsistency in a broad way so the extent of the inconsistency is interpreted broadly if it fails here if it fails at the second step of rational connection then you interpret more narrowly or put another way only with the particular portion that has failed you make a more narrow because you recognize there's something important happening it's just maybe there's not the right connection between the infringement and the importance if it's not even important then you interpret it broadly if you actually look at the next two you'd say that you have a flexible approach depends a little bit on the nature of what is going on and this will lead you to question two and question two says can the inconsistency be dealt with by uh on its own can it be dealt alone or does it have to be part of a broader discussion so here really what we're talking about is can we just take out the problem or read something in to fix it so can we read it down or read it up to actually fix the problem which is make it easy like so in the alberta human rights law instance of the ring it was an easy fix right it could be dealt with just by reading in sexual orientation and here uh it's appropriate to only do this uh to read in uh or or or to fix it in in clear cases that's where there's obvious legislative objectives um and it will further the objective or constitute a lesser offense to do this so if the reading in or severance will actually help further the objective then that it's appropriate or if the choice of means is not unequivocal have fun right you're starting to go what probably this is why this will be important to read this is why i've chosen this case in light of some of our discussions to push you to think hard about how does this case actually apply i think as you read it over you're probably going to read it twice maybe three times some of you four five six times before you actually click but getting that click to happen is part of how to learn the law and and i assure you having been through many years of legal education that this stuff doesn't just click right away all the time some of it does and some of it doesn't so one of the issues here is that we don't want to have unacceptable intrusion onto a legislative kind of prerogative right i already mentioned that reading in can be perceived as amending it can be viewed very critically so there has to be an insurance here that we're not actually intruding on the legislative domain and also we have to make sure that the intrusion doesn't have significant budgetary costs right and so when we think about how it would actually work in the case of shader what are the budgetary costs right one of the budgetary costs of extending all benefits to men women and adopted parents the third question is should the declaration be temporarily invalid and the way we decide this is it whether or not we need to give the government the opportunity to correct what has been wrong again i gave the example of assisted dying so that way you can determine if you know you don't want to leave a gap or if there's a potential bigger harm it's appropriate to do this in exactly that situation where striking down may cause harm or or striking downward threatened rule of law like a manitoba language reference or if if there was a law that was under inclusive that striking down would deprive deserving persons of benefits so perhaps there are people that deserve the benefits and maybe there are more and so why do we strike it down and harm more people something that might be very positive i'll have that slide twice now these questions are to act as guidelines only they're not hard and fast rules this sometimes can be really frustrating for students learning the law how do you know when they should be applied there's a bunch of different areas of law you'll learn about this this next year where there are guidelines or suggestions or ideas of how we would do and go about making uh determination so like what's an appropriate accommodation in a workplace for example there's no hard and fast rules and so it's a case-by-case analysis that means that argumentation becomes very important this is why lawyers are paid to argue before a court because they understand the law they understand the language of the court they understand the persuasiveness of certain arguments of using certain case law and they can persuade a court to go one way or the other so they're not hard and fast rules they're meant to be a guideline and in this case the right was deemed to be a positive right if you recall back a few days or a few videos ago i differentiate between negative rights and positive rights negative rights being the interference of something like the government interfering with positive rights being kind of an entitlement so here it's a positive right it's a benefit that the state is giving to individuals and therefore that requires some special considerations in the remedial context and the benefit here is not should say not constitutionally prohibited shouldn't say no i apologize really what's happening is there's an under inclusiveness here because it didn't include men but under inclusiveness we now have to ask the question should this declaration be suspended or should we read the excluded group in you have these now remedies and courts have to decide okay it's a violation it's under inclusive doesn't include men so should we just strike it down suspend it or should we read men in and the court had to figure this out because natural parents had been deliberately excluded from this law it very clearly identified women and adopted parents so it wasn't that the legislature's intentions were to just do women they had included adoptive parents so clearly natural parents had been left out and there was no clear legislative mandate behind the legislation which meant that it was probably improvement for the court to read in and assume that it was meant to be more so the court decided that we can't actually read it in because it's also going to cost a lot of money and and the declaration was unnecessary as the provision could be amended now did you follow all that i'm guessing some maybe some maybe not so here's the deal this is the end of the video it's already almost 50 minutes already way too long so what what you need to do now is go back read that case read it carefully knowing what i've just said and i went through it quickly and i was trying to like not do too much and i was trying to be uh i obviously do have notes you've seen me flip some pages i don't always use notes i forget that they're there but for some of these cases i don't remember all this stuff all the time i don't work in this area all the time so i like to have some things to remind myself about the appropriate way to to con convey this new this information but here's a great study habit i got a lot of questions in the q a about how to study how to read so why don't you tell me what this case is about no not for real we're not going to meet in a coffee shop because of kobe because there's like hundreds of you but think about how would you tell me or tell someone else what this case is about how would you tell someone else the story of shakhtar shaytard shaster s case how would you go about doing this and then if you don't quite get it read it again and if you don't quite get it read it again i have read sometimes cases dozens of times sometimes you're looking for something sometimes you just you haven't read it in a while and you want to remind yourself and sometimes you just don't understand what the hell is going on and that's okay because you know what i know many people trained in law that look at cases and go i have no idea what's happening here and then a lot of people that are trained in law that pretend they know and write as if they know then you read their assessment and you go i don't see that because there's interpretation involved here there's an ability a requirement to have an ability to read and to see what's going on and sometimes even read between the lines and to know the history to read this case read it a couple times see if you can figure it out and if you can't i'll be there at the question and answer period bright and early i won't be early but i'll be there and i will answer these questions first and foremost because i imagine there might be some but my my real suspicion is if you take it serious and try to learn this case and read the case to understand it there won't be any questions