CONSTITUTIONAL WINTER SUPER CANS

ABORIGINAL PEOPLES

Relevant Provisions:
⇒S.35 of CA 1982: Rights of the Aboriginal Peoples of Canada
⇒S. 25 of the Charter:
PART I – ABORIGINAL PEOPLES:
Starting Points:
– Aboriginal rights not subject to s. 1 of the CA 1982; - s. 35(1) is part of section II of the CA
– s. 33 not applicable to Aboriginal rights
– s. 24 remedies do not apply
–
Other Legislation Relevant to Aboriginal Rights:
– Royal Proclamation
– s. 91(24) – been interpreted to permit Gov’t of Canada to make laws in relation to “Indians”
– s. 35 CA 1982
– Indian Act – governs the status of Indians in Canada
– International legis/Treaties
– s. 25 – interpretive provision – Charter not to be interpreted in a way that would derogate Aboriginal rights – yet to be decided
by SCC how section would be applied
Common Law Doctrines:
– doctrine of Fiduciary Duty
– notion of Aboriginal title
– Aboriginal Customary law – often makes its way into Canadian Courts (Connelly v. Wooley – married native woman in native
ceremony)

Test for Aboriginal Rights

General:
• Generous, liberal, purposive interpretation (Sparrow)
• Doubts / ambiguities to be resolved in favour of Aboriginal person / group (VanderPeet)

1. Does the legislation / government action interfere with an existing Aboriginal right?
(a) What is the scope of the right? (Burden is on the claimant)
• Must be a practice / custom / tradition that is integral to the particular group’s distinctive culture (Sparrow,
VanderPeet)
○ Must not merely be incidental. It must be distinct. (VanderPeet)
○ Must be site specific (Pamajewon)
○ Must be activity specific (i.e. NOT right to self government) (Pamajewon)
• OR a practice, custom or tradition must be guaranteed by treaty as common intention of parties (Marshall)
○ Language of treaty
○ Extrinsic evidence
• Practice / custom / tradition must date back to pre-contact times, have continuity to present day (VanderPeet)
○ Pre-control for Métis (Pamajewon)
• Rights can be exercised in modern form, not frozen in time (Sparrow, VanderPeet)
○ Must be same sort of activity (Marshall/Bernard)
• Rights are collective (Sparrow, VanderPeet)
○ Métis individuals must show membership in established Métis community (Pamajewon)
 Self-identification
 Ancestral connection
 Community acceptance
• Evidence – must be sensitive to Aboriginal perspective (Sparrow) but in terms cognizable to Court (VanderPeet)

(b) Was the right extinguished?

• Requires clear, plain intent (Sparrow)
• Regulation of a practice does not alone suffice
○ i.e. – treaties, legislation (pre-1982), constitutional amendments
• Burden on Crown
○ Federal government only (Delgamuukw)
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 (c) Was right infringed?
• Either purpose or effect of law may cause infringement (Sparrow)
• Factors (Sparrow)
○ Is limit unreasonable?
○ Does limit impose undue hardship?
○ Does limit deny person / group their preferred means of exercising the right?
○ Absolute discretion without criteria? (Marshall)
2. Can interference with the Aboriginal right be justified?

(a) Does the law have a valid objective? (Burden on the Crown)
• Must be a compelling and substantial reason (Sparrow)
○ i.e. – conservation / management of resources, public safety
• NOT public interest (Sparrow)
• Broader community interests (Gladstone)
○ Economic + regional fairness
○ Historic reliance on resource

(b) Were the law’s means in keeping with the Crown’s duty to act honourably? (Burden is on the Crown)
• Is there minimal impairment? (Sparrow)
• Is priority given to Aboriginal group? (Sparrow)
○ Aboriginal group cannot have exclusive rights(Gladstone)
○ Gov’t must take account of Aboriginal rights, allocate them in respectful manner (Gladstone)
• Was there consultation? (Sparrow)
○ Can arise before rights claim
○ Gov’t has knowledge (real or constructive)
○ Duty to consult and accommodate
 Seriousness of rights claim
 Effect on Aboriginal group
• Fair compensation? (Sparrow)
• Accommodation of right? (Gladstone)
• Extent of participation? (Gladstone)
• How important is the right to Aboriginal group’s economic and material well-being? (Gladstone)

BASIC FRAMEWORK FOR CHARTER ANALYSIS

General Points on the Interpretation of the Charter:

• Interpreting Charter means having to look at Charter as a whole and in its various parts
• Interpret the law, interpret the Charter, and then look for inconsistency or violation
• Big M. Drug Mart: Dickson: “The purpose of the right or freedom in question is to be sought by reference to the character and
the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins
of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with
which it is associated within the text of the Charter” Charter rights should be interpreted in a broad and purposive
manner having regard to the appropriate historical and social context
• when analyzing the scope of the legislation, always look at both purpose and effect: some legislation, like those dealing with
freedom of religion (ex. Big M), will infringe individual rights by their purpose; others, like those dealing with freedom of
expression (ex. prohibiting certain types of expression) will infringe individual rights by virtue of their effect

APPROACH TO CHARTER QUESTIONS

STEP 1 - DEAL WITH THE THRESHOLD ISSUES
A - DOES THE CLAIMANT HAVE STANDING?

STANDING: A party's right to make a legal claim or seek judicial enforcement of a duty or right.

1. As of Right: Individual believes that his/her Charter Rights have been affected – legislation or some sort of sanction.

2. Public Interest Standing:[Hy&Zel’s]

To establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, a person needs only to show:

a) Serious legal question: There is a serious issue to its invalidity,

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b) Genuine Interest or Directly Affected: the person is affected by it directly or that the person has a genuine interest as a citizen in
the validity of the legislation, and

c) Only Manner: That there is no other reasonable effective manner in which the issue may be brought before the court – can others
bring as of right (foetus in Borowski)? Balance opening floodgates with not immunizing legislation from scrutiny (To get around
this, present sufficient evidence on how the Act/Provision prejudges the organization)[Churches, Hy&Zel’sfailed here]

3. Big M Drug Mart Exception:[Big M Drug Mart, Wholesale Travel Group, Morgentaler. Canadian Egg]
Any accused, whether corporate or individual, may defend a criminal charge (or civil/regulatory charge) by arguing that the law
under which the charge is brought is constitutionally invalid, as no one can be convicted of an offence under an unconstitutional
law.A corporation can take benefits from a law that affects individuals under section 52.

4. Residuary Discretion: [Canadian Egg Marketing Agency]

Where a case has been fully argued on the merits then, notwithstanding that the plaintiff has no status to maintain the action on its
face, if the question involved is one of public importance then the Court has discretion to decide the case on the merits. This
expanded the Big M Drug Mart exception to civil proceedings in limited circumstances. The purpose of the expansion is to permit
a corporation to attack what it regards as an unconstitutional law when it is involuntarily brought before the courts pursuant to a
regulatory regime set up under an impugned law. Now standing applies to criminal and civil proceedings when involuntarily
brought before the court [maybe use L’H-D’s Exceptional Prejudice rule from Hy&Zel’s based on Smith].

B - IS THE ISSUE/QUESTION JUSTICIABLE? ( )

In the exam, always make sure you ask yourself whether or not it is a "legal question".

LEGAL QUESTION: If the Court is of the opinion that it is being asked a question with a significant extralegal component, it may
interpret the question so as to answer only its legal aspects; if this is not possible, the Court may decline to answer the question – the
court will not answer purely political questions [Canada Assistance] court must maintain its proper role & stay in area of expertise –
questions involving interpretation of federal-provincial agreement or federal statute are justiciable.

IMPRECISE/AMBIGUOUS: The Court may decline to answer the question where the question is too imprecise or ambiguous to
permit a complete or accurate answer [Quebec Secession]

INSUFFICIENT INFORMATION: The Court may decline to answer the question where the parties have not provided sufficient
information to allow the Court to provide a complete or accurate answer [Quebec Secession]

• Canada Assistance Plan: In order for a question or matter to be justiciable, it must contain a sufficient legal component to
warrant the intervention of the judicial branch – otherwise it is a matter best left to parliament.
• Reference Re Secession of Quebec: The court can refuse to answer a question if (1) it has a significant extra-legal component
(2) it is too imprecise or ambiguous to permit a complete answer (3) Parties have not provided sufficient information to allow
the court to provide a complete answer.
• Reference Re Same-Sex Marriage: can also refuse if the gov’t will proceed regardless – court might refuse to answer if it
would interfere with vested rights (persons already married) – rights outweigh any potential benefit of an answer.

C –s.32: DOES THE CHARTER APPLY?

Analysis(Eldridge)
1) Identify the precise source of the alleged Charter violations.
a) Legislation - Can the legislation be interpreted in conformity with the Charter? If the legislation itself is the source then the Charter
will automatically apply
b) Delegated decision-maker. If it is not the legislation, look to the body to which the legislation confers discretionary powers

2) Must be established that the entity, in performing that action, is part of ‘government’ within meaning of s.32. It is possible for a
legislature to give authority to a body that is not subject to the Charter (ex: power of incorporation – private corporations).

Charter will apply if:

(1) Act of government (government entities broadly construed) – applies to ALL actions of govt actors
(2) An activity which, though not performed by the government, is subject to such significant government control that it could
be an act of government – only applies to actions while implementing or furthering govt policy or program – 3 part test:

(a)Control Test: Is the private body under routine & regular control by the government in such a way that it could be viewed as a
government entity? [Mckinney]
(b)Government Function Test: Is the mandate of the body clearly a function of modern government? [ex. education: Lavigne]
(c)Statutory Authority and Public Interest Test: Is the entity one that acts pursuant to statutory authority specifically granted to it to
enable it to further an objective that government seeks to promote in the broader public interest? [Elridge – sign
lang]

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 • Dolphin: (secondary picketing – labor code silent on rights) charter only applies to gov’t action – To regard a court order as an
element of governmental action/intervention necessary to invoke the Charter would widen the scope of Charter application to
virtually all private litigation – A more direct and a more precisely-defined connection between the element of government
action and the claim advanced must be present before the Charter applies – Orders of the court may be justiciable if the
government was party to the action – The courts are part of the government in a general sense and may hence be bound by
the Charter – charter applies to common law but not private litigation – CL to develop based on charter principles.
• Lavigne: (RAND formula required non-union members to pay fees) Two ways in which the charter may be invoked: (1) act of
government (government entities broadly construed) (2) an activity which, though not performed by the government, is subject
to such significant government control that it could be an act of government – ministerial control of collective barg. is gov’t
activity – gov’t appointees on board goes to control (Regents) – joint efforts don’t make activity any less governmental – in the
future the enactment of permissive provisions may support a finding of gov’t approval or encouragement to engage the charter.
• Eldridge: (no sign language in hospital) In order for the Charter to apply to a private entity, it must be found to be
implementing, or acting to further a specific governmental policy or program – (Hospitals are the vehicle the legislature has
chosen to deliver the program; and as such, hospitals must conform to the Charter. 2nd, the Medical and Health Care Services
Act is run by a Commission that has the delegated power to determine what constitutes a "medically required" service, and in
exercising their discretion, the Commission acts in a govt capacity) – claimants had private interest standing as of right.
• Hill: (Is a government lawyer a government actor if acting in private capacity?) The Charter will apply as long as there is an
infringement due to government action + a private action is not subject to the Charter – funding is not enough to prove ‘routine
or regular control’ – govt paying for Hill to sue in his personal capacity not in cap of crown – no govt control/direction of suit.
• Mckinney: Government needs to have routine or regular control over the entity for it to be a governmental actor. Universities
are not government actors – they are autonomous institutions.

STEP 2 - IS THERE A VIOLATION OF A CHARTER RIGHT OR FREEDOM?(burden on claimant)

FREEDOM OF CONSCIENCE & RELIGION - SECTION 2(a)

The essence of the concept of freedom of religion is (1) the right to entertain such religious beliefs as a person chooses,(2) the
right to declare religious beliefs openly and without fear of hindrance or reprisal, and (3) the right to manifest religious belief
by worship and practice or by teaching and dissemination [Big M Drug Mart]

Conscientious beliefs that are not religiously motivated are equally protected by freedom of conscience in s. 2(a) (Wilson
(dissent)Morgentaler)

Purpose of freedom of conscience and religion: The values that underlie our political and philosophic traditions demand that every
individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided only that such
manifestations do not injure his or her neighbors or their parallel rights to hold and manifest beliefs and opinions of their own [Big M]

Meaning of freedom of conscience and religion: Government may not coerce individuals to affirm a specific religious belief or to
manifest a specific religious practice for sectarian purpose[Big M].

How can we determine if a right or freedom is violated?

STEP 1:SCOPE – Claimant must showthat he or she sincerely believes in a practice or belief that has a nexus with religion
The scope includes freedom to hold, entertain, and declare ones religious beliefs. The scope also includes the freedom to practice the
tenants of ones faith, and includes the freedom from compulsion and coercion to adhere to religious practices. It includes
conscientiously held belief based on secular beliefs (ie - conscience can include the decision of a pregnant woman to terminate:
Morgentaler).A person need only to show that his personal or subjective belief in the religious significance of the practice is
sincere and genuine. (Subjective test) (Multani). If there are criteria out there, objective test will be used but subjective is
acceptable.

• Reference to “supremacy of God” in Charter’s preamble does not detract from this freedom (Zylberberg)
• Religious freedom “TO” and Freedom “FROM” compulsion to practice tenets of a faith – compels non-action of state (Big M)
• We should look at compulsion from the standpoint of the person claiming the violation (Zylberberg)
• No freedoms are absolute
• Includes the right to educate your children according to your religious beliefs (Jones).
• Does not protect trivial or insubstantial violations (Jones).
• Can raise your children according to your religious beliefs, even choose medical & other treatments (Children’s Aid Society)

If a person is relying on a religious practice or religious conduct, they have to show a nexus (connection) between the religious
beliefs and the conduct. It can be subjectively or objectively assessed. A subjective requirement to engage in a particular practice
will be protected. It is not up the court to determine what is and is not a requirement of a particular faith (Syndicat)

STEP 2: VIOLATION of the right or freedom?Claimant must demonstrate that the impugned conduct of a third party
interferes, in a manner that is non-trivial or not insubstantial, with his or her ability to act in accordance with that
(sincere) practice or belief (Multani).
• A violation can occur if the infringement arises by an unconstitutional purposeor an unconstitutional effect (Big M)
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• A provision possessing a religious purpose cannot be justified under s. 1 (Zylberberg)
• Can’t coerce parents to have kids undergo treatment without violating FOR – but can be justified under s. 1 (B.R.)

• Big M: (Selling goods on Sunday contrary to Lords Day Act) To accept that Parliament retains the right to compel universal
observance of the day of rest preferred by one religion is not consistent with the preservation and enhancement of the
multicultural heritage of Canadians and is contrary to s. 27 of the Charter (actual purpose violates freedom - includes freedom
to practice and not practice a religion) shifting purpose argument failed
• Zylberberg: (after school religious reading unless student had an exemption, and those with exemptions had to leave) An act
imposing on religious minorities a compulsion to conform to religious practices of the majority violates s.2(a) of the Charter –
the reality of having to get an exemption creates more problems of stigmatization & peer pressure – section severed.
• Adler: (Appellants argued that the compulsion to support a secular public school system, coupled with mandatory schooling,
imposed a financial burden on those who believe in religion as part of education. This burden both interfered with their
freedom of religion and meant that they were being treated unequally) SCC rejected these arguments and held that s.93 of the
Constitution Act, 1867, was conclusive. The SCC emphasized that s.93 was part of a historical compromise leading to
Confederation. Not only did it guarantee funding for Roman Catholic schools in Ontario, it also implicitly contemplated public,
secular schools. The constitution entrenched a power in the provincial legislature to legislate with respect to non-
denominational schools. The province had the power to fund other denominational schools, but its decision not to do so was
protected from Charter review – Freedoms do not translate into correlative duties – Sopinka (minority): one part of the
constitution cannot be used to invalidate another.
• B.R. v. Children's Aid Society: (Parents of a Jehovah’s witness child refused blood transfusion) S.1 analysis is the appropriate
forum for balancing the interests of the state against the right violation of the individual (here, the argument was that freedom
of religion did not warrant parents imposing beliefs that would threaten a child’s life  do not deal with this under s.2(a) but
leave it for s.1)SCOPE: The right of a parent to choose the medical treatment of the child in accordance with the parent's
religious beliefs was a fundamental aspect of freedom of religion; VIOLATION: The statutory procedure that had been
employed was a serious infringement of the parent's rights– keep competing rights analysis under s. 1 (Minority did balancing
and established internal limits in s. 2(a) & found no violation)
• Morgentaler: (abortion clinic not an accredited hospital) Wilson (dissent) conscientious beliefs that are not religiously
motivated are equally protected by freedom of conscience under s.2(a) the decision essentially a moral one (a matter of
conscience) – the provision takes the decision away from the woman & gives it to the committee – deprivation of s. 7 liberty
right offends s. 2(a) only Wilson
• Multani: (kirpan prohibition) must recognize that people who profess the same religion may adhere to the dogma and practices
of that religion to varying degrees of rigor - He need only show that his personal and subjective belief in the religious
significance of the kirpan is sincere–M could have been reasonably accommodated so fails minimal impairment – freedom
from compulsion to perform things against sincerely held beliefs.

FREEDOM OF EXPRESSION - SECTION 2(b)

Section 2(b) of the Charter of Rights guarantees to “everyone” the “fundamental freedom of thought, belief, opinion and
expression, including freedom of the press and other media of communication” It serves to protect the right of the minority to
express its views no matter how unpopular.

IMPORTANT: Content Neutrality is the governing principle of the SCC's definition of expression. The content of a statement
cannot deprive it of protection accorded by section 2(b), no matter how offensive it may be.

Activity is expressive if it attempts to convey a meaning. This is a very broad definition. For example, all forms of art are
sufficiently communicative to be protected: novels, plays, films, paintings, dances, music, etc.
* Consider underlying values of FOE in City of Montreal:
The despot tries to control the thoughts of citizens; if you can control thoughts you can control actions

FREEDOM OF EXPRESSION TEST (Irwin Toy): GIVE GENERAL/BROAD INTERPRETATION

STEP 1: SCOPE– WAS THE PLAINTIFF’S ACTIVITY WITHIN THE SPHERE OF CONDUCT PROTECTED BY F.O.E.

(a) CONTENT & MEANING: Does the conduct have content and convey a meaning?
• Expression includes any activity that conveys or attempts to convey a meaning
• The use of the word “activity” is significant as the Court recognized that, in some situations, actions without words may have
expressive content.
• Possession is an activity that can convey meaning (Sharpe)
• Govt can regulate form (i.e. time, place & manner) without violation so long as the form is not tied to content
• For example, parking a car ordinarily has no expressive feature, but, as the Supreme Court explained, if an unmarried person, as a
protest, was to park in a space reserved for spouses, that action would have expressive content.
• We cannot exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being
conveyed – even false speech is protected as it has meaning [fact/opinion are often disputed] (Zundel)
• Activity conveying or attempting to convey meaning have expressive content and prima facie fall within the scope of the
guarantee.

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• Commercial content is protected (Ford)

(b) FORM: Does the conduct convey a meaning through violent forms of expression?
• The only restriction the Court placed on conduct of an expressive nature was for acts of violence.
• Violence is a form often used by terrorists as a means to convey a message, but, said the Supreme Court, it is obvious that the
perpetrator of an act of violence for an expressive purpose cannot gain constitutional protection from the ordinary law of the land.
• Violence must be physical not words (i.e. hate speech) (Keegstra)
• Freedom of expression ensures that we can convey our thoughts and feelings in non-violent ways without fear of censure

Is the place/location protected? To answer this question, the following factors should be considered (Montreal City):
(a) The historicaloractualfunction of the place; and
Historical: where free expression has traditionally occurred – like libraries.
Actual: is the space essentially private, despite being government-owned, or is it public?
(b)Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression
Ultimate Question: whether free expression in the place at issue would undermine the values the guarantee is
designed
to promote (democratic discourse, truth finding, self-fulfillment). * Private property is not protected

STEP 2: VIOLATION – Was the purpose or effect of the governmental action to control attempts to convey meaning?

1. PURPOSE: (no shiftingpurpose allowed: Zundel; but can argue Butler’s shifting emphasis)
(a) If the purpose directly restricts the content of expression, go to s.1 – the purpose trenches on the guarantee
(b) If the purpose restricts a form of expression tied to content go to s.1 – the purpose trenches on the guarantee
(c) If the purpose aims to control only the physical consequences of particular conduct (activities), its purpose does not
trenchon the guarantee

Question is: does the mischief consist in the meaning of the activity or does the purpose influence what thatmeaning has on the
behavior of others (i.e. pamphleting), or does it consist only in the direct physical result of the activity.
*Attempts to control access to meaning also violate the guarantee

2. EFFECT: (onus on P) An effects-based restraint is one that is aimed at some other aspect of the activity but that may
nevertheless have an impact on expression (ex. prohibition on littering may have an effect if infringing the freedom of expression
of a person handing out pamphlets); P must demonstrate that her activity promotes at least one of the following principles
underlying s. 2(b):
(a) Seeking and attaining the truth (an inherently good activity)
(b) Participation in social and political decision making (is to be fostered and encouraged)– (i.e. tv commercials)
(c) Self fulfillment and human flourishing (ought to be cultivated)
* The disputed value of particular expressions of self-fulfillment (like exotic dancing) plays no role (Butler)

CorporationsCAN have private interest standing because they can express!! (Irwin Toy)

• Irwin Toy: Test for freedom of expression – all content-restrictive laws violate the freedom of expression (Since the purpose of
the advertising is to convey a meaning, and cannot be excluded as having no expressive content, it falls within the scope of
freedom of expression. Now must look at the government's purpose for the legislation, and/or the effects of the legislation.The
government's purpose in enacting the sections of the Consumer Protection Act was to prohibit particular content of expression
in the name of protecting children. Such a prohibition can only be justified if it meets the test under s.1) – commercial
expression is included in s. 2(b)
• City of Montreal: (loud speakers outside the strip club) sidewalk is a public place - Adds a place-based criteria to the test for
freedom of expression – music & messages played into the street convey meaning –effect is to restrict guarantee – P&S
objective, restriction on noise connected to objective – minimally impairing since there was no other viable alternative –
salutary effects outweigh deleterious effects given the limitation goes to all forms regardless of content.

GROUP HATE EXPRESSION (HATE SPEECH)

• Keegstra: (a high school professor told his students that the Holocaust never happened) The SCC rejected the notion that there
were any content-based restrictions on the section 2(b) right – Section 2(b) covered "all messages however unpopular,
distasteful or contrary to the mainstream”. The SCC also rejected the notion that section 2(b) could be narrowed by reference
to the equality rights of section 15 (or any other rights). It followed that K had been engaged in constitutionally protected
activity. However, during the s.1 analysis, when considering other competing charter values (i.e. truth, democratic
participation, self fulfillment, hate speech could not support any of those values but actually undermines them –P&S Obj:
protecting vulnerable groups from harm & stopping racism; RC: eliminating hate speech reduces harm; MI: narrow & precise –
Balance: expression is not that highly valued – reverse onus to prove truth justified – FOE on spectrum of value - violation was
justified.

PORNOGRAPHY

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 • Butler: (sale and exposure of “obscene films”) Prevention of harm that protects vulnerable members of society justifies
infringing on the freedom of expression  any form of expression that creates an incipient effect on degradation of women
(ex. violent sex) falls within this exception The s. l analysis is exceptionally harm focused here - The stronger the inference
of risk of harm, the lesser the likelihood of tolerance – there is a rational connection; it minimally impairs by focusing narrowly
on specific activities & not penalizing simple possession; benefits outweigh effects – When community standards and artistic
expression conflict any doubt must be resolved in favor of artistic expression as it is at the heart of s. 2(b). There is the problem
of desensitization.
○ STEP (1) The “COMMUNITY STANDARD OF TOLERANCE” TEST:
 It is the standards of the national community as a whole which must be considered.
 The most important test for "UNDUE" EXPLOITATION OF SEX is:
• It is concerned not with what Canadians would themselves find intolerable, but what they would
not tolerate other Canadians being exposed to – 3 Categories of Porno:
○ (1)Explicit sex with violence - almost always constitute the undue exploitation of sex &
fails test.
 Sometimes sex with crime, horror or cruelty.
○ (2)Explicit sex without violence but which subjects people to treatment that is
degrading or dehumanizing - may be undue if the risk of harm is substantial; and
 Maybe sex with crime, horror or cruelty.
○ (3)Explicit sex without violence that is neither degrading nor dehumanizing - will not
qualify as undue exploitation unless it employs children in its production
○ Violence includes physical & threats of physical violence.
 DEGRADING/DEHUMANIZING TEST: Material that exploits sex in a "degrading or dehumanizing"
manner will necessarily fail - Principal indicator of “undueness”.
• Even if no cruelty or violence; Also fails even if there is consent.
 This case: material fails the community standards test not because it offends against morals but because
public opinion holds that the portrayal of persons being subjected to degrading or dehumanizing sexual
treatment is harmful to society, particularly to women.
 If material fails step 1, proceed to step 2 to see if the undue offence of community standards is required for
the serious treatment of a theme.
○ STEP (2) “ARTISTIC DEFENCE” or “INTERNAL NECESSITIES” TEST is the last step in the analysis of
whether the exploitation of sex is undue:
 This test assesses whether the exploitation of sex has a justifiable role in advancing the plot or the theme
when measured by the internal necessities of the work itself, and is not merely "dirt for dirt's sake.
 To assess whether a dominant characteristic is undue exploitation of sex, consider:
• Author’s artistic purpose;
• Manner in which he or she portrayed and developed the story;
• The depiction & interplay of character & the creation of visual effect thru skillful camera
techniques.
• Sharpe: Child pornography is punishable when it has an incipient effect on the minds of others; but it is not punishable when
the effect is on one’s own mind – The possession of child pornography was a form of expression protected by s. 2(b) of the
Charter; the pressing and substantial and rational connections were met but the provision did not constitute minimal impairment
by catching some material that poses no risk to children. Court reads in 2 defences where there is no undue risk of harm : (1)
written materials or visual representations created by the accused alone and held exclusively for personal use, or (2) visual
recordings created by or depicting A that did not depict unlawful sexual activity and that were held by A exclusively for
personal use(i.e. two consenting minors) – possession is an activity conveying meaning

FUNDAMENTAL JUSTICE RIGHTS

Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.

Requirements of section 7:
1) Charter applicant must demonstrate that he or she falls within the reference to "everyone" in section 7. This will be easy in the
context of natural persons, but not in the case of corporations or other artificial entities (includes anyone inside Canada, no need
to be a Canadian citizen)
2) Charter applicant must demonstrate a violation of the right to life, liberty, or security of the person.
3) The rights claimant must proceed to the final stage of analysis and show that the denial of a right protected by s.7 is contrary to
the principles of fundamental justice.

LIFE, LIBERTY AND SECURITY OF THE PERSON

1. IS THE CLAIMANT COVERED UNDER “ANYONE”?

Easy standard to meet, since it will include any individual inside Canada; corporations and other artificial entities are not included

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2. IS THERE A VIOLATION OF THE INDIVIDUAL’S RIGHT TO LIFE, LIBERTY OR SECURITY? (if so proceed to PFJ
below)

a) RIGHT TO LIFE: Given the interest at stake, a risk to life may itself violate the right to life in s.7 of the Charter. This appears to be
an easy requirement to meet. If the government act or action is threatening the life of anyone in Canada, the courts will most likely
determine that there is a violation of "life" – there has bee little discussion here [McDonald]

b) LIBERTY: The liberty interest protected by s.7 is not restricted to mere freedom from physical restraint, but guarantees a degree of
personal autonomy over important decisions intimately affecting the private lives of individuals [Morgentaler]also includes the right to
make such personal decisions without state interference including where to live [Godbout], and a parent’s decision involving family
matters and medical treatment for their child [B.R.].

• The government would want to argue Justice Lamer's narrow view expressed in B.R. that “liberty should only include freedom from
physical restraint and coercive powers by the state”
• While liberty does not protect the integrity of the family unit because it is an individual right, it does encompass a right of parents
to control various aspects of the lives of their children, including the right to nurture a child, to care for its development, and to
make decisions for it in fundamental matters such as medical care, are part of the liberty interest of a parent (LaForest in B.(R.))
• Liberty includes the freedom of the individual to develop and realise his potential to the full, to plan his own life to suit his own
character, to make his own choices for good or ill, to be non-conformist, idiosyncratic and even eccentric [Jones]

c) THE RIGHT TO SECURITY OF THE PERSON: The right to security of the person can apply both inside and outside the criminal
law context [New Brunswick], and has been interpreted to include:

• Freedom from interference with the psychological integrity of the parent/stigma attached to an unfit parent (New Bruns. v. G.(J.).)
• Freedom from state interference with bodily integrity and state imposed psychological stress (Sopinka -Rodriguez)
• Other examples - Where the state interferes in profoundly intimate and personal choices such as "a woman's choice to terminate
her pregnancy, an individual's decision to terminate his or her life, the right to raise one's children, and the ability of sexual assault
victims to seek therapy without fear of their private records being disclosed."
• Extends to protection against seriouspsychological stress imposed by the state (Morgentaler)
• For an interference with psychological integrity to violatethe security of the person: (New Brunswick)
○ (1) Must be serious & profound
○ (2) To be viewed objectively from perspective of a person of reasonable sensibility
• Provides some degree of protection for fundamental decisions over one’s own body (Rodriguez)
• The right to control one’s own physical and psychological integrity must encompass the right to decide whether or not to carry a
child to term (Morgentaler) – Wilson (dissent)
• Should not be defined as giving someone the right to take their own life because security of the person includes the right to life
and the sanctity of life (Sopinka for majority Rodriguez)
• Personal autonomy(B.(R.); Godbout)

Wilson in Morgentaler: the violation of another charter right offends s. 7

NOTE: Most section 7 cases are interests that are interfered with and that the court should not turn this around to include positive
obligations on the state (McLachlin in Gosselin)

PRINCIPLES OF FUNDAMENTAL JUSTICE

3. IS THE DEPRIVATION IN ACCORDANCE WITH THE PRINCIPLES OF FUNDAMENTAL JUSTICE (from #2 above)

a) SUBSTANCE, PROCEDURE & THE BASIC TENETS OF THE JUSTICE SYSTEM[BC MVA]:s.7 complaints are allowed to
be reviewed from the perspective of substanceas well asprocedural justice. This means that the courts have the right to strike down
laws that do not conform to the judicial view of what is fundamentally just. Examples include:

Principles of Fundamental Justice must be:[Rodriguez]

Fundamental: Principles upon which there is some consensus that this thing/value is one that is fundamental – there is a
shared understanding.
Precise: Must be a principle that is capable of being defined with some precision.
Legal: Must be a legal principle

• Presumption of innocence(that the innocent not be punished) is a PFJ

• No absolute offences can possess the possibility of imprisonment – physical restraint deprives of liberty[BC MVA]
• Unnecessary delays in the judicial process putting an individual at risk [Beetz in Morgentaler]
• Defenses that are essentially illusory[Dickson, McIntyre –Morgentaler]
• Right to a fair hearing, notice of a hearing and the right to be able to present the case effectively – possible obligation to provide
counsel[New Brunswick]
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• Moral or ethical norms, completely divorced from core legal values, cannot be characterised as PFJ [Rodriguez]
• SCC has given PFJ a broad interpretation.
• “Fundamental justice” is not synonymous with the narrow procedural concept of ‘natural justice’. To give the term this
interpretation would strip the protected interests of much, if not most, of their content and leave the right to life, liberty and
security of the person in a sorely emaciated state

b) VAGUENESS, ARBITRARINESS OR OVERLYBROAD:

• The definition of health is not defined and is vague and has no identifiable standard. The concern is that not all women will meet
the definition of "health" by the committee. [Dickson in Morgentaler] flexibility & vagueness are not synonymous
• For a law to be arbitrary and unfair:[Rodriguez]
It must be unconnected to the state interest & lack legal foundation.
You must assess the Q of arbitrariness in terms of whether the law is unrelated to the state interest that it is seeking
to protect. Does it lack legal foundation? Must balance the interests of the individual and those of the state
• When the means are broader than is necessary to accomplish the objective, arbitrary & are not clearly defined (ex. overbreadth in
geographical ambit, duration without review, people to whom it applies: Heywood)
• What makes a law intelligible rather than vague: (1) Provides the terms of legal debate; & (2) Provides a sufficiently delineated
zone of risk [N.S. Pharmaceutical]
• Intelligibility is more appropriate than absolute certainty [Irwin Toy]
IF THE VIOLATION IS NOT IN ACCORDANCE WITH PFJ, PROCEED TO S. 1 BUT JUSTIFICATION WILL BE HARD

• BC MVA: the court’s task is to secure the “full benefit of Charter protection”. This is to be attained by a broad purposive approach
to the Charter. Therefore, principles of fundamental justice are not limited to procedural rights and include substantive rights as well
• Morgentaler: Dickson (2): Security of the person can be seen to encompass a notion of personal autonomy involving, at the very
least, control over one’s bodily integrity free from state interference and freedom from state imposed psychological and emotional
stress – violation due to health not being defined, delay & illusory defence; Beetz(2):right of access to medical treatment for a
condition that represents a danger to a person’s health, delay created procedural unfairness & danger to health (here, because there
was unequal access to health services, not all women could get abortions at TACs. Women who got abortions elsewhere risked
imprisonment. This is a procedural violation because it was in the application of the law, not in the substance. IS the abortion
provision in the Criminal Code valid? Majority said they violated s. 7 under security of person;Wilson(1): concurring judgment
found bodily integrity violated – people can’t be used as a means to an end - also found that they infringed a woman's right of
freedom of conscience
• Rodriguez: (assisted suicide) Deprivation of s. 7 rights not contrary to PFJ – prohibition in s. 214(1) reflected state’s interest in
protecting life & vulnerable & principle of sanctity of life – blanket prohibition on assisted suicide was not arbitrary or unfair & did
not infringe s. 7 – prohibition rationally connected to purpose of protecting human life – met min impairment requirement. Moral
rights & duties involved not recognized explicitly by court
• New Brunswick: State removal of a child from parental custody constitutes a serious interference with the psychological integrity
of the parent (consider potential outcomes of a hearing). A combination of stigmatization, loss of privacy, and disruption of family
life are sufficient to constitute a restriction of security of the person. The effects of state interference must be assessed objectively,
with a view to their impact on the psychological integrity of a person of reasonable sensibility. Since there is a violation, the next
question is: is it in accordance with the principles of fundamental justice? What is the PFJ here: The PFJ includes the right to a fair
hearing, and includes the right to be able to present the case effectively. This is dependant on several factors to impose a positive
obligation on the state to provide counsel:
○ Serious Issue – taking away children is example of this - especially the possibility that the kind can be taken away for
12 months.
○ Complexity of Proceedings – issue is unfitness of parent (expert witnesses, self-incrimination, there adversarial
proceedings)
○ Capacity of Person – can person do it on her own? Because of the complexity, the state should have provided her
with council.
• Gosselin: (lesser benefits for people under age 35)- Section 7 DOES NOT impose a positive obligation to guarantee adequate living
standards - The possibility is left open that a positive obligation to sustain life, liberty, or security of the person may be made out in
special circumstances – this is not such a case – there is no evidence of actual hardship given that people could participate in any of
the work programs – also the limitation is not permanent but only until reaching a certain age
• B.R.: Section 7 of the Charter did not guarantee unlimited freedom. Although the Child Welfare Act deprived the appellants of their
right to choose the medical treatment for their child in this case, such intervention was justified under the state's parenspatriae
jurisdiction. The procedure governed by the Act was in accordance with the principles of fundamental justice. In balancing the
rights of the kid to the rights of the parents, the state can interfere where the parents do not meet the socially acceptable threshold as
long as it is in accordance with PFJ. The rights of parents can override the rights of the child where it is in accordance with PFJ.
Balancing the kid's interest takes place under PFJ – demands of fundamental justice are more easily met in an emergency

S. 15 – EQUALITY RIGHTS

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.

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(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.

Test for s. 15(1) (Andrews/Ermineskin)

(Burden on the claimant)
1. Does the law create a distinction based on an enumerated or analogous ground?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
NOTE – At this stage it is a comparative concept - Identify the appropriate comparator group. "The comparator group should mirror
the characteristic of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic
related to the enumerated or analogous ground raised as the basis for discrimination" (Auton).

If there is a violation as per the s. 15(1) test, then we must look to the s.15(2) analysis.
Test for s.15(2) (Lovelace)
(Burden on Government)
There is no s. 15 violation if:
1. The program has an ameliorative or remedial purpose, and
2. If the program targets a disadvantaged group identified by the enumerated or analogous gounds.

Analogous Grounds: Often serves as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal
characteristic that is immutable(unchangeable) or changeable only at unacceptable cost to personal identity. Section 15 targets the
denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable like religion (Corbiere).
L’H-D: Factors for Analogous Ground Determination:
Personal characteristic important to identity, belonging, etc.
Immutable or difficult to change
Ground describing those lacking social or political power
Recognized in provincial or federal human rights code
Vulnerable to becoming disadvantaged and having their rights overlooked.

• Lovelace: (distribution of casino funds; excluded non-status natives) While the appellants had established pre-existing
disadvantage, stereotyping and vulnerability, they failed to establish that the Fund functioned by way of stereotype. The
appellant communities had very different relations regarding land, government and gaming from those anticipated by the casino
program. The ameliorative purpose of the casino project and the Fund had been clearly established. While the project was not
designed to meet similar needs in the appellant communities, its failure to do so did not amount to discrimination under s.15.
○ It was a targeted ameliorative program – and therefore no violation.
○ Dignity not impugned because there was an ameliorative purpose: served an affirmative action purpose.
○ Not under-inclusive to exclude those off reserve because was targeted affirmative action program. Otherwise, it
would be under-inclusive.
○ Even if people are left out of this group that are disadvantaged, if it has an ameliorative purpose, then it will not
otherwise be discriminatory.
○ NARROW ANALYSIS – Once you draw the box around the benefit, determine whether group fits. Tough to apply
this case.
• M. v. H.: FLA draws a distinction by specifically according the court-enforced rights to individual members of unmarried
cohabitating opposite sex couples, which by omission it fails to accord to individual members of same sex couples who live
together. Sexual orientation is an analogous ground to those enumerated in section 15 (1), as sexual orientation is a deeply
personal characteristic that is either unchangeable or changeable only at unacceptable personal costs. Section 29 withholds a
benefit, and the case also satisfies the contextual factors. Clear discrimination; Legislation failed at the rational connection test
in the section 1 justification - excluding same-sex couples from the FLA's spousal support regime was not rationally connected
to the pressing and substantial objectives of protecting children and women, addressing sexual inequality, providing equitable
resolution to economic disputes, and reducing the burden on the public purse to provide support.
• Corbiere: Analogous grounds - often serve as the basis for stereotypical decisions made not on the basis of merit but on the
basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. Section 15
targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable like
religion. "Aboriginality-Residence" is an analogous ground as it goes to the personal characteristic essential to a band
member's personal identity, which is no less constructively immutable than religion or citizenship.
• Eldridge: (no sign language for deaf patients – adverse effects/system discrimination) facially neutral benefit scheme can result
in discrimination –Effective communication is required because miscommunication can: (a) lead to misdiagnosis, (b) lead to
failure to follow a recommended treatment, (c) cause an action in negligence law – quality of care received by the deaf was
inferior compared to that of the hearing population - the obligation to make reasonable accommodation for those adversely
affected by a facially neutral policy or rule extends only to the point of “undue hardship” – fails minimal impairment
• Auton: (autistic children wanting therapy benefits) NEW s. 15(1) Stage added: the claim must be for a BENEFIT PROVIDED
BY LAW – can’t be used to make the govt pay for a benefit that it hasn’t provided in the first place – can’t create from scratch
– Once benefits are provided though, they must be provided in a non-discriminatory manner. Distinction b/t “core” and “non-
core” therapies. She HATES this decision
• Andrews: facially neutral laws may be discriminatory – after all, s. 15 does provide for “equal benefit”

STEP 3 – SECTION 1 JUSTIFICATION ANALYSIS (burden on government)

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IS IT A LIMIT PRESCRIBED BY LAW?

Section 1:The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

A limit will be prescribed by law where:

(1) The limit is expressly provided for in legislation – i.e. duty to provide breath sample, etc.
(2) The limit is not expressly stated but is present by implication – i.e. common law marriage definition

Where a decision maker is acting under authority they have been granted in a statute then the charter applies and decisions can be
attempted to be justified under s. 1 – if they acted consistently with their authority (Multani) – If they act outside of their discretion
then it will not be prescribed by law (Therens)

A law will be found unconstitutionally vague if it does not provide an intelligible standard: 1) sufficient guidance for legal debate, 2)
outlines an area of risk.

In general, where a limitation on Charter protected rights arises from the action of state officials outside of their authority (not from a
text of law) there can be no justification under section 1 (Therens). A rule that is legislative in nature, instead of one that is imposed by
administrative action. If a government actor violated an individuals Charter rights using discretion. When a limit is not prescribed
by law, there can be no justification so go straight to remedy. Not s.52, because it is not legislation - must be a section 24
remedy.

The Govt will want it to be a limit prescribed by law so they can have an opportunity to justify it; whereas the complainant does not –
justification takes place because rights & freedoms are not absolute – might be necessary to limit them where their exercise would be
inimical to the realization of the collective goals of fundamental importance.

• Therens: the legislation did not expressly state a duty to provide an immediate breath sample – nor did it imply an
immediate breath sample by allowing a 2 hour window – so the police action was not a limit prescribed by law and cannot
be justified under s. 1 – proceed to remedy.
• Nova Scotia: A law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for
legal debate. The law must provide an intelligible standard. A law will be intelligible if it: a) provides terms of legal
debate, b) outlines an area of risk (fair notice to citizen and limitation of enforcement discretion). Threshold for vagueness
is very high because need to leave room for interpretation.

LOOK AT THE IMPUGNED LEGISLATION’S OBJECTIVE:

Context:[Thomson Newspapers]

• Factors to consider whether s. 1 justification meets the civil std of proof: Vulnerability of the group that the legislator seeks to
protect; that group’s own subjective fears & apprehension of harm; the inability to measure scientifically a particular harm in
question or the efficaciousness of a remedy; enhancement of other charter values; & the nature of the activity that is infringed –
i.e. does the activity go to the core of the right or is it further away (political speech vs. porno) (Thomson Newspapers; Sharpe).
* Consider these factors at each stage of the s. 1 test
• consider social context (RJR)
• Place to determine deference to parliament – don’t carry contextual approach so far that Parliament is relieved of burden. Give
government some deference with evidentiary burden but not too much (McLachlin in RJR)
• Suggestions of greater deference when competing rights than between individual and state (Irwin Toy).
• Section 27 of Charter discusses Canada’s multicultural heritage
• Section 1 is the place for balancing of competing rights (B.R.)
• Section 1 is the place for dealing with safety issues rather than internally limiting rights (Multani)
• S. 2(b)’s core need is ensuring truth & the common good being attained – hate speech is not a serious breach (Keegstra).

Step 1 – Pressing and Substantial (Sufficiently Important) Objective:

• The objective must “relate to concerns which are pressing and substantial in a free and democratic society” – such values &
principles (Oakes): respect for the inherent dignity of the human person, commitment to social justice and equality,
accommodation of a wide variety of beliefs, respect for cultural & group identity, faith in social & political institutions that
enhance the participation of individuals and groups in society part of the contextual approach to section 1.
• Objective of sufficient importance to warrant overriding a constitutionally protected right and freedom (Big M)
• Characterization of the govt objective should be narrowly restricted to the objective of the impugned measure itself, and not some
broader social purpose that might be easier for the govt to justify (RJR-MacDonald).
• The objective of the impugned legislation must be (1) not discordant with the values of a free and democratic society (2) Pressing
and substantial (3) Not trivial (don’t want trivial objectives getting s. 1 protection: Oakes).

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• The Court has indicated that under section 1 of the Charter "it is desirable to state the purpose of the limiting provision as
precisely and specifically as possible so as to provide a clear framework for evaluating its importance, and the precision with
which the means have been crafted to fulfill that objective" (Thompson Newspapers).
• One exception to this general preference for a fairly narrow definition of the objective is in the case of underinclusivelegn, in
which case the courts will examine not only the purposes of the unconstitutional omission, but also of the legislation as a whole
(M.v. H.)
• Safety is a pressing and substantial objective

THE PROPORTIONALITY TEST:(each stage to be determined by the civil standard of proof, b.o.p [Oakes, Irwin Toy])

Step 2 – Rational Connection Between Limit and Objective (The measures adopted must be carefully designed to achieve the
objective in question)

• The measures must not be arbitrary, unfair or based on irrational considerations – rather, they must be rationally connected to the
objective (Oakes, BC MVA)  see vagueness under PFJ
• There need not be scientific proof of a rational connection between the limit on the Charter right and the legislative objective – it
is sufficient that the connection can be inferred though the exercise of reason or logic (Butler, andRJR McDonald)
• Reasoned apprehension of harm? (Butler)
• Gov’t must demonstrate rational connection according to a civil standard of proof (balance of probabilities) (RJR)
• Look at the coherence & efficiency of the measures and objective (Thomson Newspapers)
• Rational-connection test can be used to prevent the justification of laws based on arbitrary or discriminatory assumptions
(M.v.H.)

Step 3 – Minimal Impairment (the means should impair as little as possible the right to the freedom in question)

• Need not be the least impairing – just must be an option chosen from among reasonable alternatives (BC MVA?)
• Consider alternative measures (Oakes) – won’t fail just because can think of something less intrusive
• Reasonable Accommodation Test (Multani): if there is a way to accommodate the person without undue hardship, then there is an
unjustifiable violation if not adopted.
• Overbroad legislation that violates s. 7 will be incapable of passing the minimal impairment branch of the s. 1 analysis – law
captures more conduct than is necessary in achieving its objective (Heywood)
• A violation that is characterized as a total ban of a right in question will often be struck down on the basis that it does not
minimally impair the right in question (Thomson Newspapers). For example:
 a complete ban on all forms of secondary picketing including peaceful leafleting (Kmart); ban on publishing polls (Thomson)
complete exclusion from all labor law when the legislative purpose was to prevent collective bargaining and strikes (Dunmore)

Step 4 – Overall balance or proportionality between the benefits of the limit and its deleterious effects(Thomson Newspapers)

• There must be aproportionality between the deleterious effects of the measures which are responsible for limiting the Charter
right or freedom, and the objective which has been identified as of “sufficient importance” – consider the key charter values.
• There must also be a proportionality between the deleterious and the salutary effects of the measures (Dagenais)
• Ensures that the laws are not struck down for trial or insubstantial unconstitutional effects (Lavigne).
• (1) Consider the value of the objective: how much value beyond P&S? What harm does it avoid? For the greater good?
• (2) How serious is the infringement: how bad is it? Huge? Trivial?

• Oakes: drug trafficking is a serious P&S issue –fails rational connection – can’t infer trafficking based on possession of a small
amount of drugs; Remedy: struck down/severed section of the act.
• RJR: (1)tobacco use is a pressing and substantial objective; (2) section prohibiting logos on anything but the product is not
rationally connected & no causal connection established.
• Thomson: complete ban on publishing polls is not the least intrusive alternative – standing as of right for s. 2(b)

STEP 4 - REMEDIES

A remedy should normally be as extensive as the violation of the Charter right identified (Corbiere). Also, don't forget that when a
limit is not prescribed by law, the only remedy is section 24.

Section 52(1): The Constitution is the Supreme Law of Canada, and any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or effect.

This remedy may be invoked with respect to any law (government act) inconsistent with the Charter, such as legislation, statutes. A
good example is M. v. H.

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Section 24(1): 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.

This remedy applies to government action, such as public officials. A good example is Eldridge.

Remedies available: (1)Striking down whole enactment; (2)Striking down part of enactment (severance) – can the offending portion be
precisely defined, would the leg have enacted the legn without the offending portion, can the legn survive without it?; (3) Find whole
or part of law invalid but suspend declaration of invalidity; or (4) “Reading in” what has been omitted – consider role of court v
.prlmnt; (5)Constitutional Exemption: legn is not unconstitutional in general but is unconstitutional to a small subset of those to whom
it applies – can be exemption from legislation or exemption from delay.

SECTION 52(1) ANALYIS IN DETERMINING APPROPRIATE REMEDY(Taken from Schachter)

STEP 1:Determine the extent of the inconsistency: Define the inconsistency

• BROADLY: When the legislation fails the first branch of the Oakes Test (purpose is unconstitutional, or is not sufficiently
pressing or substantial) – where purpose is insubstantial the whole law should be struck.
• NARROWLY: When the legislation is deemed sufficiently pressing and substantial but the means used to achieve a valid
purpose are not rationally connected to the purpose – strike the portion that fails the rational connection test.
• FLEXIBLY: Where the legislation fails the second or third element of the Oakes Test (minimal impairment or effects must be
proportionate to the objective that is identified) – then add proportionality, read in, strike down, sever, etc.

STEP 2:Can the inconsistency be dealt alone, by way of severance or reading in, or are other parts of the legislation
inextricably linked to it?

To sever or read-in the legislative objective must be obvious and severance or reading in would not interfere with the objective. Must
not intrude on the legislative domain, & not intrude on legislative budgetary decisions. Consider the following when deciding to read-
in or sever:

• REMEDIAL PRECISION: The Court should not "read-in" in cases where there is no manner of extension which flows with
sufficient provision. (reading-out is easier then reading-in) - Severance allows one to define the inconsistent part precisely,
reading in may not yield precision – If reading in not precise, the parliament should fill in gaps.
• INTERFERENCE WITH LEGISLATIVE OBJECTIVE: When fashioning a remedy, it is necessary to apply the measures
which will best vindicate the values expressed in the Charter, and refrain from intruding in to the legislative sphere beyond what
is necessary – reading in may infringe on budgetary considerations past an appropriate level.
• CHANGE IN SIGNIFICANCE OF REMAINING PORTION (THRUST): After reading in, or severing, is the significance of
the remaining legislation substantially changed? When the group to be included is smaller than the original group then reading in
may be sound – If added group is large then trouble – This is not always the case though – If the remaining portion has a long
history or is significant then O.K. – Expansion of protection rather than removal of protection is the best policy. (Vriend)

STEP 3:Should the declaration of invalidity be temporarily suspended?

Temporary suspension is clearly appropriate when striking down the legislation would lead to chaos or public danger or threaten rule
of law. Striking down might remove benefits from those entitled (under-inclusive not overbroad), but to read in may be legislating,
therefore suspend. This is a separate analysis then whether to use striking down or reading in. Suspension may force untimely debates.
Generally the litigant who brings forward the Charter challenge should get immediate benefits

SECTION 24(1) ANALYSIS IN DETERMINING REMEDIES

An individual remedy under section 24(1) of the Charter will rarely be available in conjunction with action under section 52(1) – if
benefit conferred is constitutionally mandatory reading in may be mandatory – striking down may deprive of benefits (Schachter). To
allow section 24 remedies during the period of suspension would be tantamount to giving the declaration of invalidity retroactive
effect. However, in some circumstances it will be appropriate (Dissent in Rodriquez) – watch jurisdiction
Section 24: ‘own rights or freedoms’ means the section applies to people before the court as of right – no other litigants get s. 24
remedies

• M.v. H.:Section 52 Remedy: reading in is only available where the court can direct with a sufficient degree of precision what
is to be read in will comply with the constitution – Reading in would in effect remedy one constitutional wrong only to create
another, thereby failing to ensure the validity of the legislation – Furthermore, where reading in to one part of a statute will
have significant repercussions for a separate and distinct scheme of the Act (affecting other parts or sections), it is not safe to
assume the legislature would have enacted the statute in its altered form. Where reading-in is inappropriate, the court must
choose between striking down, or severing. Striking down the FLA was deemed to be excessive. The court decided that the
appropriate remedy would be to Sever and Suspend: Section 29 of the Act is of no force or effect, with this remedy being
temporarily suspended for 6 months – safe to assume parliament would have enacted act without impugned provisions.
• Eldridge - Section 24 Remedy: The court decided that the appropriate remedy would be a Declaration. This was done
opposed to some kind of injunctive relief because there are myriad options available to the government that may rectify the

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 unconstitutionality of the current system. The declaration was: Sign language interpreters will be provided where necessary for
effective communication in the delivery of medical services
• Big M – Section 52 Remedy: purpose of entire legislation was unconstitutional – strike the whole act.
• BC MVA – Section 52 Remedy: sever the offensive (absolute liability) portion
• United Foods: severing 6 conditions would be too broad – chose to sever definition of picketing with suspension
• Dunmore: Section 52 Remedy: strike exclusion of worker – suspension needed because family farm workers could unionize

TEST to determine what remedy to use (Schachter)

1. Extent of the Inconsistency – the extent of the inconsistency should be defined:

• broadly where the legislation in question fails the first branch of the Oakes test,
• more narrowly where the purpose is held to be sufficiently pressing and substantial, but the legislation fails the first element of the
proportionality branch of the Oakes test,
• flexibly where the legislation fails the second or third element of the proportionality branch of the Oakes test.
1. Severance or reading in will be warranted only in the clearest of cases, which is where each of the following criteria is met:
• the legislative objective is obvious
• the choice of means used by the legislature to further that objective is not so unequivocal that severance/reading in would
constitute an unacceptable intrusion into the legislative domain, and
• severance or reading in would not involve an intrusion into legislative budgetary decisions so substantially as to change the nature
of the legislative scheme in question.
1. Temporarily Suspending the Declaration of Invalidity – this is appropriate where:
• striking down the legislation would pose a danger to the public,
• striking down the legislation would threaten the rule of law
• the legislation was deemed unconstitutional because of under inclusiveness.

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