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Constitution – Winter 2006


Charter Problems: Analysis
1. Look at the threshold issues.
• Standing
• Justiciability
• Government Action or Actor
2. Whether there is a violation of a Charter Right or Freedom?
3. Justification of the Violation under section 1.
• Limit prescribed by law.
• Oakes Test
4. Appropriate Remedy

Basic Sources

Canada’s Constitution Prior to 1982

The Canadian Bill of Rights is a federally enacted statute and applies to federal jurisdiction only. It is said to be a quasi-constitutional
document, meaning the conflicts between the Canadian Bill of Rights and other federal statues are treated in ways that are unique, whereas
conflicts between the Constitution and an ordinary statute render that statute void to the extent of its inconsistency. The Canadian Bill of
Rights provides for special rules of statutory interpretation to govern conflicts between the Bill and ordinary statues. The ordinary statute
shall not be construed or applied so as to create conflict with the Bill. If a statute can be construed two ways, courts are directed to adopt
the one that will not conflict with the Bill of Rights. If the statue cannot be applied such that a conflict can be avoided, the application rule
directs the courts not to apply the statute. Normally under the rules of statutory interpretation, when a later specific statuette conflicts with
an earlier general statute, the earlier general statute is impliedly repealed to the extent of the inconsistency. However, the quasi-
constitutional status of the Bill of Rights reverses this rule. Where the later specific statute conflicts with the Bill, it is the later specific
statute which is impliedly repealed. It exerts a sterilizing force on later specific statues which conflict with it through a specially created
doctrine of statutory interpretation.

The Structure of the Charter

• Section 1: General guarantee of rights as well as a limitation of rights. Rights can be limited in certain circumstances. Generally,
the limits are reasonable, prescribed by law and demonstrably justified in a free and democratic society.
• Section 2: Fundamental Freedoms. These include religion, expression, press, assembly and association.
• Section 3 to 5: Democratic Rights. These include voting rights, limit of the duration of legislative bodies and required number of
sittings for the Parliament and provincial legislatures.
• Section 6: Mobility Rights. Canadians have the right to move around Canada, enter and leave Canada and pursue the gaining of a
livelihood in any province. Section 6(3) limits some of these rights.
• Section 7 to 14: Legal Rights. These sections protect the rights of those in contact with the criminal justice system and include the
right to be protected from unreasonable search and seizure, the right to be presumed innocent and the right to be tried within a
reasonable time.
• Section 15: Equality Rights. This section protects individuals from discriminatory legislation.
• Section 16 to 22: Language Rights.
• Section 21: Protection of Constitutional official language rights.
• Section 23: Minority Language Educational Rights. This guarantees English and French minorities access to schooling in their
own language in certain circumstances
• Section 25: Protection of Aboriginal Rights.
• Section 27: Directs the Charter to be interpreted in a manner consistent with the multicultural heritage of Canada.
• Section 28: The Charter is equal to males and females.
• Section 32(1): Application to the Parliament, provincial legislatures and federal and provincial governments.
• Section 33: Notwithstanding Clause sets out a constitutional procedure for immunizing legislation from Charter review. This
override can only be used for legislation which violates sections 2 and 7 to 15.

Reference Same-Sex Marriage – 2004 SC

On July 16, 2003, the Governor in Council issued Order in Council asking for a reference on the federal government’s Proposal for an Act
respecting certain aspects of legal capacity for marriage for civil purposes. The Act dealt with civil marriages only and not religious
marriages. The operative sections of the Proposed Act read as follows:

1. Marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.
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2. Nothing in this Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance
with their religious beliefs.

Issues and Ratio:

1. Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the
exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent? Yes.

The dominant characteristic of s.1 of the Proposed Act is apparent from its plain text: marriage as a civil institution. In saying that marriage
for civil purposes is the lawful union of two persons to the exclusion of all others, this section stipulates the threshold requirements of that
institution: Two persons, regardless of gender, are legally capable of being married. In pith and substance, therefore, the section pertains to
the capacity for marriage. Section 91(26) of the Constitution confers on Parliament competence in respect of Marriage and Divorce
whereas s. 92(12) of that Act confers on the provinces competence in respect of the Solemnization of Marriage and confers authority in
respect of the performance of marriage once that capacity has been recognized. Thus, the capacity to marry in instances of consanguinity
or in view of prior marital relationships falls within the exclusive legislative competence of Parliament under s. 91(26).

Canada is a pluralistic society and so marriage and religion are no longer inseparable. Marriage is a civil institution. The “frozen concepts”
reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living
tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life. A large and liberal, or
progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s Constitution. The arguments presented to
this Court in favour of a departure from the living tree principle fall into three broad categories: (1) marriage is a pre-legal institution and
thus cannot be fundamentally modified by law; (2) even a progressive interpretation of s. 91(26) cannot accommodate same-sex marriage
since it falls outside the natural limits of that head of power, a corollary to this point being the objection that s. 15 of the Charter is being
used to amend s. 91(26); and (3) in this instance, the intention of the framers of our Constitution should be determinative.

First, it is argued, the institution of marriage escapes legislative redefinition. Existing in its present basic form since time immemorial, it is
not a legal construct, but rather a supra-legal construct subject to legal incidents. Several centuries ago it would have been understood that
marriage should be available only to opposite-sex couples. The recognition of same-sex marriage in several Canadian jurisdictions belies
the assertion that the same is true today. Second, some interveners emphasize that while the Constitution is envisioned as a living tree, it is
capable of growth and expansion within its natural limits. These natural limits, they submit, preclude same-sex marriage. As a corollary,
some suggest that s. 1 of the Proposed Act would effectively amount to an amendment to the Constitution by interpretation based on the
values underlying s. 15(1) of the Charter. The natural limits argument can succeed only if its proponents can identify an objective core of
meaning which defines what is “natural” in relation to marriage. Absent this, the argument is merely tautological. The only objective core
which the interveners before us agree is natural to marriage is that it is the voluntary union of two people to the exclusion of all others.
Beyond this, views diverge. We are faced with competing opinions on what the natural limits of marriage may be. Consequently, it is not
for the Court to determine, in the abstract, what the natural limits of marriage must be. Rather, the role is to determine whether marriage as
defined in the Proposed Act falls within the subject matter of s. 91(26). In determining whether legislation falls within a particular head of
power, a progressive interpretation of the head of power must be adopted. The competing submissions do not permit the court to conclude
that marriage in s. 91(26), read expansively, excludes same-sex marriage. Third, it is submitted that the intention of the framers should be
determinative in interpreting the scope of the heads of power enumerated in s.91 and 92 given the decision in R. v. Blais, which considered
the interpretive question in relation to a constitutional agreement, as opposed to a head of power which must continually adapt. It is
therefore distinguishable and does not apply here.

The potential impact on provincial powers of a federal law on same-sex marriage does not undermine the constitutionality of s. 1 of the
Proposed Act. Arguments to the effect that it does can be met: (1) they ignore the incidental nature of any effect upon provincial legislative
competence; and (2) they conflate same-sex relationships with same-sex marriage. Clearly, federal recognition of same-sex marriage
would have an impact in the provincial sphere. Further, provincial competence in relation to property and civil rights would be affected in
that a host of legal incidents attendant upon marital status would attach to same-sex couples. These effects, however, are incidental and do
not relate to the core of the powers over solemnization and property and civil rights. Marriage and civil unions are two distinct ways in
which couples can express their commitment and structure their legal obligations. Civil unions are a relationship short of marriage and are,
therefore, provincially regulated. The authority to legislate in respect of such conjugal relationships cannot, however, extend to marriage. If
we accept that provincial competence in respect of same-sex relationships includes same-sex marriage, then we must also accept that
provincial competence in respect of opposite-sex relationships includes opposite-sex marriage. This is clearly not the case. Likewise, the
scope of the provincial power in respect of solemnization cannot reasonably be extended so as to grant jurisdiction over same-sex marriage
to the provincial legislatures. Issues relating to solemnization arise only upon conferral of the right to marry. Just as an opposite-sex
couple’s ability to marry is not governed by s. 92(12), so a same-sex couple’s ability to marry cannot be governed by s. 92(12).

The principle of exhaustiveness ensures that the whole of legislative power is distributed as between Parliament and the legislatures. In
essence, there is no topic that cannot be legislated upon, though the particulars of such legislation may be limited. A jurisdictional
challenge in respect of any law is therefore limited to determining to which head of power the law relates. Legislative competence over
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same-sex marriage must be vested in Parliament or the legislatures. Neither s.92(12) nor s.92(13) can accommodate this matter. S.2 of the
Proposed Act relates to those who may perform marriages. Legislative competence over the performance or solemnization of marriage is
exclusively provincial under s.92(12). The AG Canada suggests that s.2 Act is declaratory, merely making clear Parliament’s intention that
other provisions of the Proposed Act not be read in a manner that trenches on the provinces’ jurisdiction. The provision might be seen as
an attempt to reassure the provinces and to relax the concerns of religious officials who perform marriages. However worthy these
concerns are, only the provinces may legislate exemptions to existing solemnization requirements, as any such exemption necessarily
relates to the solemnization of marriage under s. 92(12). S.2 is therefore ultra vires Parliament. While it is true that Parliament has
exclusive jurisdiction to enact declaratory legislation relating to the interpretation of its own statutes, such provisions can have no bearing
on the constitutional division of legislative authority. That is a matter to be determined, should the need arise, by the courts. It follows that
a federal provision seeking to ensure that the Act within which it is situated is not interpreted so as to trench on provincial powers can have
no effect and is superfluous. Because s. 2 of the Proposed Act relates to a subject matter allocated to the provinces, it follows that it does
not fall within the exclusive legislative competence of Parliament.

2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex,
consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent? S.1 of the
Proposed Act is not within the exclusive legislative competence of Parliament but it is consistent with the Charter.

To determine whether a provision is consistent with the Charter, it is first necessary to ascertain whether its purpose or effect is to curtail a
Charter right. If so, the further question arises of whether the curtailment is justified under s. 1 of the Charter. The purpose of s. 1 of the
Proposed Act is to extend the right to civil marriage to same-sex couples. The course of events outlined below in relation to Question 4
suggests that the provision is a direct legislative response to the findings of several courts that the opposite-sex requirement for civil
marriage violates the equality guarantee enshrined in s. 15(1) of the Charter. The preamble to the Proposed Act is also instructive. The
Act’s stated purpose is to ensure that civil marriage as a legal institution is consistent with the Charter:

Turning to the substance of the provision itself, s.1 embodies the government’s policy stance in relation to the s.15(1) equality concerns of
same-sex couples. This combined with the circumstances giving rise to the Proposed Act and with the preamble thereto, points
unequivocally to a purpose which, far from violating the Charter, flows from it. Section 1 of the Proposed Act was impugned before this
Court on the basis that, in its effect, it violates s.15(1) and 2(a) of the Charter. Some interveners submit that the mere legislative
recognition of the right of same-sex couples to marry would have the effect of discriminating against (1) religious groups who do not
recognize the right of same-sex couples to marry (religiously) and/or (2) opposite-sex married couples. No submissions have been made as
to how the Proposed Act, in its effect, might be seen to draw a distinction for the purposes of s. 15, nor can the Court surmise how it might
be seen to do so. It withholds no benefits, nor does it impose burdens on a differential basis. It therefore fails to meet the threshold
requirement of the s. 15(1) analysis laid down in Law v. Canada (Minister of Employment and Immigration). The mere recognition of the
equality rights of one group cannot, in itself, constitute a violation of the rights of another. The promotion of Charter rights and values
enriches our society as a whole and the furtherance of those rights cannot undermine the very principles the Charter was meant to foster.

The question at this stage is whether s.1, considered in terms of its effects, is consistent with the guarantee of freedom of religion under s.
2(a) of the Charter. It is argued that the effect of the Proposed Act may violate freedom of religion in three ways: (1) the Proposed Act will
have the effect of imposing a dominant social ethos and will thus limit the freedom to hold religious beliefs to the contrary; (2) the
Proposed Act will have the effect of forcing religious officials to perform same-sex marriages; and (3) the Proposed Act will create a
“collision of rights” in spheres other than that of the solemnization of marriages by religious officials. The first allegation of infringement
says in essence that equality of access to a civil institution like marriage may not only conflict with the views of those who are in
disagreement, but may also violate their legal rights. This amounts to saying that the mere conferral of rights upon one group can constitute
a violation of the rights of another. This argument was discussed above in relation to s. 15(1) and was rejected. The second allegation of
infringement, namely the allegation that religious officials would be compelled to perform same-sex marriages contrary to their religious
beliefs, will be addressed below in relation to Question 3. Under the third allegation, the potential for a collision of rights does not
necessarily imply unconstitutionality. The collision between rights must be approached on the contextual facts of actual conflicts. The first
question is whether the rights alleged to conflict can be reconciled. Where the rights cannot be reconciled, a true conflict of rights is made
out. The Court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 of the Charter. In both steps, the
Court must proceed on the basis that the Charter does not create a hierarchy of rights and that the right to religious freedom enshrined in s.
2(a) of the Charter is expansive.

Here, difficulty is encountered at the first stage. The Proposed Act has not been passed, much less implemented. Therefore, the alleged
collision of rights is purely abstract. In such circumstances, it would be improper to assess whether the Proposed Act, if adopted, would
create an impermissible collision of rights in as yet undefined spheres. The right to same-sex marriage conferred by the Proposed Act may
conflict with the right to freedom of religion if the Act becomes law, as suggested by the hypothetical scenarios presented by several
interveners. However, the jurisprudence confirms that many if not all such conflicts will be resolved within the Charter, by the delineation
of rights prescribed by the cases relating to s. 2(a). Conflicts of rights do not imply conflict with the Charter; rather the resolution of such
conflicts generally occurs within the ambit of the Charter itself by way of internal balancing and delineation. The protection of freedom of
religion afforded by s. 2(a) of the Charter is broad and jealously guarded in our Charter jurisprudence. Should impermissible conflicts
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occur, the provision at issue will fail the justification test under s. 1 of the Charter and will be of no force or effect under s. 52 of the CA.
The conflict will cease to exist.

3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious
officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?
The guarantee of freedom of religion in the Charter affords religious officials protection against being compelled by the state to
perform marriages between two persons of the same sex contrary to their religious beliefs.

The Proposed Act is limited in its effect to marriage for civil purposes. It cannot be interpreted as affecting religious marriage or its
solemnization. We therefore consider this question as it applies to the performance, by religious officials, of both religious and civil
marriages. We also must consider the question to mean compelled by the state to perform, since s. 2(a) relates only to state action; the
protection of freedom of religion against private actions is not within the ambit of this question. We note that it would be for the Provinces,
in the exercise of their power over the solemnization of marriage, to legislate in a way that protects the rights of religious officials while
providing for solemnization of same-sex marriage. It should also be noted that human rights codes must be interpreted and applied in a
manner that respects the broad protection granted to religious freedom under the Charter.

The concern here is that if the Proposed Act were adopted, religious officials could be required to perform same-sex marriages contrary to
their religious beliefs. Absent state compulsion on religious officials, this conjecture does not engage the Charter. If a promulgated statute
were to enact compulsion, we conclude that such compulsion would almost certainly run afoul of the Charter guarantee of freedom of
religion, given the expansive protection afforded to religion by s. 2(a). The right to freedom of religion enshrined in s. 2(a) encompasses
the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to
manifest religious belief by worship, teaching, dissemination and religious practice. The performance of religious rites is a fundamental
aspect of religious practice. It therefore seems clear that state compulsion on religious officials to perform same-sex marriages contrary to
their religious beliefs would violate the guarantee of freedom of religion under s. 2(a). It also seems apparent that, such a violation could
not be justified under s. 1 of the Charter. Concerns were also raised about the compulsory use of sacred places for the celebration of such
marriages and about being compelled to otherwise assist in the celebration of same-sex marriages. The reasoning that leads us to conclude
that the guarantee of freedom of religion protects against the compulsory celebration of same-sex marriages, suggests that the same would
hold for these concerns.

4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in
section 5 of the Federal LawCivil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If
not, in what particular or particulars and to what extent? Declined (no answer).

The Court may decline to answer reference questions where to do so would be inappropriate, either because the question lacks sufficient
legal content or because attempting to answer it would for other reasons be problematic. There are two reasons for this (1) where the
question is too ambiguous or imprecise to allow an accurate answer and (2) where the parties have not provided the Court with sufficient
information to provide a complete answer.

The first consideration on the issue of whether this Court should answer the fourth question is the government’s stated position that it will
proceed by way of legislative enactment, regardless of what answer we give to this question. The government has clearly accepted the
rulings of lower courts on this question and has adopted their position as its own. The common law definition of marriage in five provinces
and one territory no longer imports an opposite-sex requirement. In addition, s. 5 of the Federal LawCivil Law Harmonization Act, no
longer imports an opposite-sex requirement. Given the government’s stated commitment to this course of action, an opinion on the
constitutionality of an opposite-sex requirement for marriage serves no legal purpose. The second consideration is that the parties to
previous litigation have now relied upon the finality of the judgments they obtained through the court process. In the circumstances, their
vested rights outweigh any benefit accruing from an answer to Question 4. Moreover, other same-sex couples acted on the finality of
EGALE, Halpern and Hendricks to marry, relying on the Attorney General of Canada’s adoption of the result in those cases. While the
effects of the EGALE and Hendricks decisions were initially suspended, the suspensions were lifted with the consent of the Attorney
General. As a result of these developments, same-sex marriages have generally come to be viewed as legal and have been regularly taking
place in British Columbia, Ontario and Quebec. Since this reference was initiated, the opposite-sex requirement for marriage has also been
struck down in the Yukon, Manitoba, Nova Scotia and Saskatchewan. In each of those instances, the AG Canada conceded that the
common law definition of marriage was inconsistent with s. 15(1) of the Charter and was not justifiable under s. 1. The final consideration
is that answering this question has the potential to undermine the government’s stated goal of achieving uniformity in respect of civil
marriage across Canada. There is no question that uniformity of the law is essential. This is the very reason that Parliament was accorded
legislative competence in respect of marriage under s. 91(26). However, the government has already chosen to address the question of
uniformity by means of the Proposed Act. Given that uniformity is to be addressed legislatively, this rationale for answering Question 4
fails to compel.

On the other hand, consideration of the fourth question has the potential to undermine the uniformity that would be achieved by the
adoption of the proposed legislation. The uniformity argument succeeds only if the answer to Question 4 is no. By contrast, a yes answer
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would throw the law into confusion. The decisions of the lower courts in the matters giving rise to this reference are binding in their
respective provinces. They would be cast into doubt by an advisory opinion which expressed a contrary view, even though it could not
overturn them. The result would be confusion, not uniformity. In sum, a unique combination of factors is at play in Question 4. The
government has stated its intention to address the issue of same-sex marriage by introducing legislation regardless of our opinion on this
question. The parties to previous litigation have relied upon the finality of their judgments and have acquired rights which in our view are
entitled to protection. Finally, an answer to Question 4 would not only fail to ensure uniformity of the law, but might undermine it. These
circumstances, weighed against the hypothetical benefit Parliament might derive from an answer, convince the Court that it should
exercise its discretion not to answer Question 4.

• First, the court looks at threshold issues:


• Standing
• Justiciable Issue
• S.32
• Second, the court asks whether there is a particular right or freedom under the charter.
• Third, the court asks whether the government can justify the infringement under section 1. The government must show a pressing
and substantial need for the legislation, and rational connection and proportionality of that legislation.
• Finally, the court asks whether there is a remedy.
• The mere recognition of the equality rights of one group cannot in itself, constitute a violation of the rights of another.

Justiciability:
• All questions had sufficient legal components, were worded precisely and unambiguously, and had sufficient information. But the
court decided not to answer question four.
• Court stated that there was no legal purpose in answering question four, because the government would act in the manner it
desires.
• If the court does answer question four, it may create confusion in the law, as to whether lower court decisions would apply when
the government acts in its own manner.
• The government seeks uniformity. It could have appealed the lower court rulings which would have been a better avenue to bring
the issues forward.

Interpretive Theories

Introduction to Constitutional Interpretation

Does interpretation mean:


• The specific clause that seems to apply (clause-bound textualism)
• The whole text (structural textualism?
• A combination of the two (purposive textualism). The Charter would have an overreaching objective which gives meaning to a
specific clause. The specific clause would also aide understanding to what this overreaching objective is.

Each of these versions may give rise to a different understanding of a particular constitutional right. Meanings can also change over time.
Originalists insist that the initial meaning at the time the Constitution was framed should be binding, either as intended by the drafters or
as commonly understood by their contemporaries. The limiting effect on judicial discretion is regarded as a great advantage; the outcome
of constitutional litigation would be more predictable. Doctrinalism on the other hand, uses traditional common law interpretive techniques
to expand the meaning of the text to include its subsequent judicial interpretation. However, what is gained in flexibility and currency is
lost in determinacy and predictability. Doctrinalism also gives judges increasing power to determine the meaning of a statute as time goes
by. Finally, developmentalism seeks to remedy the last problem by allowing other sources of meaning to shape the interpretation of the
Constitution, including academic writing and public discourse.

The method of Charter interpretation has to be geared to its ultimate end. It is not enough to understand the constitutional text in the
abstract. The interpretive process establishes connection between the constitutional text and other laws, the facts of a case, precedents, the
political system, etc. Successful Charter interpretation is understanding the scope and limits of a right in order to allow application to the
problem. Systemic Structuralists seek to interpret the Constitution in light of the underlying political system. Transcendent Structuralists
incorporate political theories, traditions and philosophies as well. A recurring interpretation problem is the mutual limitation of rights. No
right can be absolute, in that the exercise of rights by one person may eventually impact on the rights of others. American courts tend to
limit the scope of specific rights in an effort to balance competing interests. In Canada, interpretive schools which define themselves
according to the overall goal of constitutional interpretation are commonly referred to as purposive. The most modest version is known as
prudential purposivism, which sees constitutional interpretation as statecraft; interpretation has to translate into practical policy designed to
strengthen the political system. A variant of this theory is the doctrine of clear mistake, which operates from a strong presumption of
constitutionality only to be interfered with in cases of glaring infringements of democratic rights or fundamental civil liberties. Finally,
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aspirational purposivism looks at the constitution as a source of vision for what kind of nation we aspire to become and interprets rights in
a way to further this vision.

Interpretivisim in the Supreme Court of Canada

The Supreme Court found that the framers of the Charter had intended for the courts to take a broad, liberal approach to Charter
interpretation beyond originalist intentions. The premise that the framers of the Charter must be presumed to have intended that the words
used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter was enacted is not a
reliable guide to its interpretation and application. By its very nature a constitutional charter of rights and freedoms must use general
language which is capable of development and adaptation by the courts. This connected to the living tree doctrine. Emerging from R v. Big
M Drug Mart, Charter rights should be interpreted in a broad and purposive manner having regard to the appropriate historical and social
context. Three principles were identified:

1. The Charter is part of the living tree that is the Canadian Constitution and that as such the past plays a critical by non-exclusive
role in determining the scope of Charter rights.
2. Practical considerations should be borne in mind when undertaking constitutional interpretation.
3. The court must be guided by the ideal of a free and democratic society as enunciated in Oakes.
Purposive Interpretation

R v. Big M Drug Mart – 1985 SC

Facts:

Big M Drug Mart was charged with unlawfully carrying on the sale of goods on Sunday, May 30 th 1982 contrary to the Lord’s Day Act
(1970). It challenged the constitutionality of the Act, both in terms of the division of powers and section 2(a) of the Charter.

Issue:

Was the CA correct in its disposition of the issues in this appeal? Yes. Is the Act invalid and of no force or affect? Yes.

Ratio: (Dickson, CJ.)

There are two possible ways to characterize the Act; one religious, securing public observance of Christianity, and the other secular,
providing a uniform day of rest from labour. A finding that the Act has a secular purpose is not possible. Its religious purpose, in
compelling sabbatical observance, has been long-established and consistently maintained by the courts in Canada. The AG Canada submits
that it is not the purpose by the effects of the Act which are relevant and the affects alone should be assessed in determining whether the
legislation violates a constitutional guarantee of freedom of religion. This is false. Both the purpose and the effect are relevant in
determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate the legislation. The AG also
submits that the purpose of the legislation may be transformed over time by changing social conditions, again related to effects and not
purpose. A number of objections arise. First, no legislation would be safe from a revised judicial assessment of purpose. Laws assumed
valid on the basis of persuasive and powerful authority could be struck down as invalid. This would create uncertainty and encourage re-
litigation of the same issue, effectively ending the doctrine of stare decisis. Further, the theory of a shifting purpose stands in stark contrast
to fundamental notions developed in law concerning the nature of parliamentary intention. Purpose is a function of the intent of those who
drafted and enacted the legislation at the time, and not of any shifting variable.

The Lord’s Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians. It takes religious
values rooted in Christian morality and using the force of the state, translates them into a positive law binding on believers and non-
believers alike. Non-Christians are prohibited for religious reasons from carrying out activities which are otherwise lawful, moral and
normal. The protection of one religion and concomitant non-protection of others imports disparate impact destructive of the religious
freedom of the collective.

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 Canada. To do so is contrary to the expressed provision of s.27 of the
Charter which reads: this charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural
heritage of Canadians. The Charter is intended to set a standard upon which present as well as future legislation is to be tested. The
meaning of the concept of freedom of conscience and religion is not to be determined solely by the degree to which that right was enjoyed
by Canadians prior to the proclamation of the Charter. 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, the language chosen to articulate the specific right or freedom, the historical origins of
the concepts enshrined, and where applicable, the meaning and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter. The interpretation should be a generous, rather than a legalistic one, aimed at fulfilling the
purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection.
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It is the contention of R that the Act violates freedom of conscience and religion by coercing the observance of the religious institution of
the Sabbath. It is important in A’s argument that freedom from such coercion forms no part of “freedom of religion” as it has been
articulated in Canadian jurisprudence. With the entrenchment of the Charter the definition of freedom of conscience and religion is no
longer vulnerable to legislative incursion. A definition of freedom of conscience and religion incorporating freedom from compulsory
religious observance is not only in accord with the purposes and tradition underlying the Charter, it is also in line with the definition of that
concept as found in Canadian jurisprudence. The guarantee of freedom of conscience and religion prevents the government from
compelling individuals to perform or abstain from performing otherwise harmless acts because of the religious significance of those acts to
others. The element of religious compulsion is perhaps somewhat more difficult to perceive when it is non-action it amounts to.

With the entrenchment of the Charter in the definition of freedom of conscience and religion is no longer vulnerable to legislative
incursion. A definition of freedom of conscience and religion incorporating freedom from compulsory religious observance is not only in
accord with the purposes and traditions underlying the Charter, it is also in line with the definition of that concept as found in Canadian
jurisprudence. The Lords Day Act is enacted pursuant to the criminal law power under s.91(27) however, in providing for compulsory
observance of the Sabbath, the act and especially s.4 does infringe on the guarantee of freedom of conscience and religions in s.2(a) of the
Charter and cannot be justified under s.1.

(Wilson, J.)

While it remains perfectly valid to evaluate the purpose underlying a particular enactment in order to determine whether the legislature has
acted within its constitutional authority in division of powers terms, the Charter demands and evaluation of the impingement of even intra
vires legislation on the fundamental rights and freedoms of the individual. It asks not whether the legislature has act for a purpose that is
within the scope of the authority of that tier of government, but rather where in so acting, is has the effect of violating an entrenched
individual right. It is first and foremost, an effects-oriented document. At the first stage of any Charter analysis is to inquire whether
legislation in pursuit of what may well be an intra vires purpose has the effect of violating an entrenched right or freedom. So long as a
statue has such an actual or potential effect on an entrenched right, it does not matter what the purpose behind the enactment was.

• Limitations of freedoms are sometimes necessary to public safety, health and well-being. There is freedom to hold and
practice one’s own beliefs and freedom from state coercion.
• Freedom of religion includes the right to hold, declare, practice and manifest religious beliefs. Freedom of religion is
subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and
freedoms of other. Here the court is referring to the fact that freedom of religion will be subject to s.1. There is also some
suggestion that freedom of religion may contain an internal limit to the extent that one person’s freedom of religion is not
allowed to injure another’s parallel rights.
• Act only has a religious purpose and cannot be applied to a secular argument. The purpose cannot shift either. (from
religious to secular)
• A review of the historic underpinnings and case law led to the conclusion that the Lord's Day Act should be characterized
as having the religious purpose of sabbatical observance, rather than the secular purpose of providing a uniform day of rest from
labour. The Court stated the purpose of freedom of conscience and religion to be that government may not coerce individuals to
affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose. On that basis the compelled
observance of the Christian Sabbath was held to infringe freedom of conscience and religion.
• Dickson: Both the purpose and effects must be examined in constitutional cases. They are also indivisible. To focus on one
or the other would be artificial.
• Shifting Principle: Danger of re-litigation of issues, ending doctrine of stare decisis. This is contrary to the notion of
parliamentary intent.
• Wilson: Should examine the effects. The purpose of the legislation may be valid, but it could still have negative effects on
individuals. The effects are what will violate the Charter.
• Dickson: S.27 of the Charter lays out the interpretation of the Charter. It refers to the multicultural heritage of Canada.
Rights and freedoms are interpreted with this in mind.
• The scope of freedom of religion as including freedom from religion which includes compelling people to observe a
mandatory Sabbath day.
• The court uses s. 27 (multiculturalism) of the Charter to help interpret the section on freedom of religion. In order to
preserve Canada’s multicultural heritage freedom of religion must include the freedom from being compelled to observe
another groups religion.
• The word “freedom” which implies a sense of being free from compulsion.
• There is no real need to look back at the Canadian Bill of Rights because it was so narrow. The Charter is broader and
covers everything in the bill.
• Must take the Charter’s context into consideration. It can broaden or narrow the particular right or freedom in question.
Context includes factual, linguistic, philosophical, historical context.
• Freedom of religion also includes freedom from being compelled to partake in something one’s own belief creates conflict
or what one doesn’t believe at all.
• Two components of the freedom of religion: The freedom to practice ones religion and the freedom to not be compelled to
practice the religion.
8

• Charter interpretation should be purposive, generous and broad, but not so broad that it could create other problems. Courts
must also regard the context with regard to facts, language, history, politics, etc.
• S.27 can give meaning to other freedoms.
• The interpretation of the right should be a generous rather than a legalistic one, aimed at fulfilling the purpose of the
guarantee and securing for individuals the full benefit of the Charter’s protection. The right has to be looked at in its linguistic,
philosophical and historical contexts in order to determine this.
• Freedom of religion is not an absolute right. One has the right to freedom of religion but cannot interfere with another’s
parallel right to freedom of religion. The court does not discuss whether this limit should be addressed under s.1 or under s.2(a)
itself.
• The connection between freedom of religion and freedom of conscience: freedom of religion is a subset of freedom of
conscience. In this case the court talks about freedom of religion as being a prototype of freedom of conscience.

The scope of freedom of religion:


• People have the freedom not to be coerced by the government to require a certain religious belief.
• People have the right to manifest beliefs and opinions of there own as long as those beliefs do not harm his or her
neighbors.
• The court looks at s.27 and that helps them with a contextual interpretation as to what the liberty entails.

Reference S.94(2) of the Motor Vehicles Act (BC) – 1985 SC

Facts:

The BC Motor Vehicles Act provided for minimum periods of imprisonment for the offence of driving without a valid licence or with a
suspended licence. Pursuant to s.94(2) the offence was one of absolute liability; guilt was established by proof of driving, whether or not
the driver knew of the suspension.

Ratio: (Lamer, J.)

The courts will not question the wisdom of enactments but it is the duty of the court to ensure legislatures do not transgress their
constitutional mandate and engage in the illegal exercise of power. In the context of s.7 and in particular, the interpretation of principles of
fundamental justice, there has prevailed in certain quarters an assumption that all but a narrow construction of s.7 will inexorably lead the
courts to question enactments, to adjudicate upon the merits of public policy. The concerns with the bounds of constitutional adjudication
explain the characterisation of the issue in a narrow and restrictive fashion; whether the term “principles of fundamental justice” has a
substantive or merely procedural content. The characterisation of the issue in such a fashion pre-empts an open-minded approach to
determining the meaning of the term. The substantial/procedural dichotomy narrows the issue almost to an all or nothing proposition.

The overriding and legitimate concern that courts ought not to question the wisdom of enactments, and the presumption that the legislator
could not have intended the same, have to some extent distorted the discussion surrounding the meaning of principles of fundamental
justice. This has led to the spectre of a judicial super-legislature without a full consideration of the process of constitutional adjudication
and the significance of s.1 and 33 of the Charter and s.52 of the Constitution. This in turn has also led to a narrow characterisation of the
issue and to the assumption that only a procedural content to principles of fundamental justice can prevent the courts from adjudicating
upon the merits or wisdom of enactments. If this assumption is accepted, the inevitable corollary is that the legislator intended that the
words refer to procedure only. However, the task of the court is not to choose between substantive or procedural content, but to secure for
person the full benefit of the Charter’s protection under s.7 while avoiding adjudication of public policy. This can only be accomplished by
a purposive analysis and the articulation of objective and manageable standards for the operation of the section within such a framework.

• Constitutionality of creating an absolute liability offence with a minimum term of imprisonment. This could apply to people who
didn’t even know about their licence suspension. This minimum imprisonment is said to affect liberty under s.7.
• Question of whether the principles of fundamental justice should only apply to procedural aspects or can the court bring in
substantial concerns?
• The court’s proper role is not to question the legislation but to determine whether it is constitutional or contrary to the charter.
• Sometimes it can be difficult to determine what is procedural or substantive. To give people the full benefit of the charter, courts
should consider both.
• S.7 contains both procedural and substantive principles. The court looks to see if the context of the law is unfair based on these
principles.
• Procedural/Substantive Argument: Principles of s.7 include substantive principles, not just procedural (right to a fair trial, council,
appeal, etc.) Substantive considerations allow for a full or broad application of the Charter, especially when other laws broadly apply
to freedoms.
• Imprisonment provision seems to be a blend of procedural and substantive; procedural in that this is the punishment of the
offence, substantive in that a person will automatically go to jail.
• Principle that the innocent not be punished was identified as one such essential element of a system for the administration of
9

justice. The concept of absolute liability, to the extent that it had the potential to deprive life, liberty or security of the person, offended
that principle. In this case the Act provided for imprisonment, which deprived liberty and thus infringed s. 7.
• The infringement could not be justified as a reasonable limit under s. I, since the benefit of punishing bad drivers and removing
them from the road did not outweigh the risk of imprisoning innocent people.
• Absolute liability offences with a prison term attached as punishment infringe s.7 through a deprivation of liberty. It is the court’s
task to secure full benefit of the Charter’s protection, attained by a broad purposive approach to the Charter.
• US Experience: Make it an all or nothing approach. Americans have no internal checks within their constitution. Canada has
section 1 and 33 in the Charter and section 52 in the Constitution. Courts must exercise caution when looking at these types of
American cases.

Vriend v. Aberta – 1998 SC

Facts:

Vriend’s employment was terminated after he disclosed that he was a homosexual. He attempted to file a complaint with the Alberta
Human Rights Commission for discrimination, but the Commission said he could not make a complaint under the Individual’s Rights
Protection Act because it did not include sexual orientation as a prohibited ground for discrimination. The trial judge found that sexual
orientation was an unjustified violation of s.15 of the Charter and ordered it to be read into s.2(1), 3, 4, 7(1), 8(1) and 10 of the IRPA as a
prohibited ground of discrimination. The CA allowed most of Alberta’s appeal. Vriend appealed to the SC.

Issue:

Was s.15 of the Charter violated? Yes. Was it justified under s.1? No.

Ratio: (Cory, J.)

The notion of judicial deference should not be used to completely immunize certain kinds of legislative decision from Charter scrutiny.
This issue is not a battle between the legislature and judiciary. It is the Constitution, which must be interpreted by the judiciary, what may
limit the legislature. And this does not just apply to positive acts, but omissions also. It is the court’s position to determine if the challenge
is justified.

The constitutional challenge concerns the IRPA, legislation that has been proclaimed. The fact that it is the under-inclusiveness of the act
which is at issues does not alter the fact that it is the legislative act which is the subject of Charter scrutiny in this case. Furthermore, the
language of s.32 does not limit the application of the Charter merely to positive actions encroaching on rights or the excessive exercise of
authority.

It is suggested that this appeal represents a contest between the power of the democratically elected legislatures to pass the laws they see
fit, and the power of the courts to disallow those laws, or to dictate that certain matters be included in those laws. This is misleading and
erroneous. It is not the courts which limit the legislature; it is the Constitution, which must be interpreted by the courts. It is also not only
positive acts that can be scrutinized, but also omissions, such as in this case. Unless the analysis is undertaken, it is impossible to say
whether the omission is neutral or not. Neutrality cannot be assumed. To do so would remove the omission from the scope of judicial
scrutiny under the Charter.

(Iaccobucci, J.)

As rights and freedoms are not absolute, the government can sometimes justify the qualification or infringement of these constitutional
rights under s.1. This section allows for Charter infringements provided that the state can establish that they are reasonable justifiable in a
free and democratic society. Disputes over these rights must be settled in the courts and the infringement can be sustained once the action
has met the two-stage Oakes Test. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to
attain this legislative end must be reasonable and demonstrably justifiable in a free and democratic society. In order to satisfy the second
requirement, three criteria must be met: (1) the rights violation must be rationally connected to the aim of the legislation, (2) the impugned
provision must minimally impair the Charter guarantee and (3) there must be proportionality between the effect of the measure and its
objective so that the attainment of the legislative goal is not outweighed by the abridgement of the right.

It was the deliberate choice of the provincial and federal legislatures to assign an interpretive role to the courts and to command them
under s.52 to declare unconstitutional legislation invalid. Allowing such a process also keeps each branch of government accountable to
each other. When a court interprets legislation alleged to be a reasonable limitation in a free and democratic society as sates in s.1 of the
Charter, the court must inevitable delineate some of the attributes of a democratic society. Democratic values and principles under the
Charter demand that legislators and the executive take all democratic attributes into account and if they fail to do so, the courts should
stand ready to intervene. Judges are not acting undemocratically by intervening when there are indications that a legislative or executive
decision was not reached in accordance with the democratic principles mandated by the Charter. This is the principle that applies to this
case.
10
In this case, at the first stage of Oakes, the government is asked to demonstrate that the objective of the omission is pressing and
substantial. One may allude to moral considerations that likely formed the legislature’s choice, but even if such considerations could be
said to amount to a pressing and substantial objective, the onus of justifying the infringement lies with the government. In the absence of
any submissions regarding the pressing and substantial nature of the objective of the omission, R has failed to discharge their evidentiary
burden and so the case must fail at this stage. Sexual orientation must be read in the Charter and other statutes.

• CA: Controversial issues should not be open to the decision of the judiciary; it should be a legislative matter.
• SC: The role of the courts is to intervene when another branch has acted unconstitutionally. Judicial review is not
undemocratic. The judiciary is not bound by anyone other than the Constitution and it is the responsibility to over-turn the
legislative will if it is unconstitutional.
• In the event that the courts go get out of control, there is always s.33, where the court’s power becomes checked.
• Judicial Deference: The purpose of the court is not to determine whether legislation is good or bad or wise in terms of
policy, but is present to interpret and determine whether legislative policy decisions come up against the constitution or charter.
• The omission itself does not mean the court should give more deference to the legislation. The proper time to give deference
is when a violation must be justified under s.1 or when considering remedies, when a violation has been found.
• AHR’s legislation violated s.15 and could not be saved under s.1. The Court read sexual orientation into the act as a
prohibited ground of discrimination.
• Omissions of the legislature are given the same constitutional scrutiny as positive acts of the legislature. The court says you
cannot assume that an omission such as this is a neutral one and therefore the court should not look at any omission of the
provincial government any differently than any positive act made by the provincial government. Omissions are given the same
constitutional scrutiny as positive acts.
• There exists a dialogue between the Courts and the Legislature that provides accountability & enhances the democratic
process. Judges are not acting undemocratically by intervening when there are indications that a legislative or executive decision
was not reached in accordance with the Charter. The concept of democracy is broader than the notion of majority rule.

Contextualism

R v. Wholesale Travel Group Inc. – 1991 SC

Facts:

Wholesale Travel was charged with several counts of false advertising contrary to s.36(1)(a) [now s.52(1)(a)] of the Competition Act. The
trial judge held that s.36 and 37(2), which creates a statutory due diligence offence, were inconsistent with s. 7 and 11(d) of the Charter.
The CA Ontario held that s.37(2) was unconstitutional to the extent that it placed a persuasive burden on the accused to prove the defence
of due diligence on a balance of probabilities.

Issue:

Whether the impugned provision violates s. 7 and 11(d)? No. The reverse onus provision did not constitute an infringement of s.7 or
11(d).

Ratio: (Cory, J.)

One virtue of the contextual approach is that it recognises that a particular right or freedom may have a different value depending on the
context. This approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the
relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular
facts and therefore more conducive to finding a fair and just compromise between the two competing values under s.1. Rights or freedoms
may have different meanings in different contexts. For this reason, the right or freedom must be assessed in context rather than in the
abstract and that its purpose must be ascertained in context. Context is relevant both with respect to the delineation of the meaning and
scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.

In the present case, the contextual approach requires that regulatory and criminal offences be treated differently for the purposes of Charter
review. This differential treatment first relates to the distinctive nature of regulatory activity and then second to the fundamental need to
protect the vulnerable through regulatory legislation. The basis of criminal responsibility is that the accused person has made a deliberate
and conscious choice to engage in activity prohibited by the Criminal Code. The licensing argument is directed to this question of choice.
While in the criminal context, the essential question to be determined is whether the accused as made the choice to act in the manner
alleged in the indictment, the regulated defendant is assumed to have made the choice to engage in the regulated activity. The questions
becomes not whether the defendant chose to enter the regulated sphere by whether having done so, the defendant has fulfilled the
responsibilities attending that decision. Those who engage in regulated activity should, as part of the burden of responsible conduct
attending participation in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within
the regulated sphere. The concept is that those persons who enter a regulated field are in the best position to control the harm which may
result, and that they should be held responsible for it.
11
The Charter is not an instrument to be used by the well positioned to roll back legislative protections enacted on behalf of the vulnerable. It
would be unfortunate if the Charter was used as a weapon to attack measures intended to protect the disadvantaged and comparatively
powerless members of society. A contextual approach is required in this case in order that the distinctive nature of regulatory offences and
their fundamental importance in Canadian society may be considered. Both licensing and vulnerability justify differential treatment, for the
purposes of Charter interpretation, of crimes and regulatory offences.

Issue: Whether Wholesale Travel has standing to raise the constitutional issue and can it benefit from a finding of unconstitutionality?

Ratio: (Lamer, CJC)

Any accused, whether corporate or individual, may defend a criminal charge arguing that the law under which the charge is brought is
constitutionally valid. In Irwin Toy, the court held that only humans could enjoy the right to life, liberty and security guaranteed by s.7,
and that a corporation was therefore unable to seek a declaration that something in an act infringed on s.7 of the Charter. In Irwin Toy
however, there were no penal proceedings with regards to the act. A number of parties contended that a corporation which has been
charged with a penal provision has standing to challenge the constitutionality of that provision; this does not necessarily mean that the
corporation can benefit from a finding that the provision violates a human being’s constitutional rights. When a corporation’s
constitutional challenge gives rise to a finding of a violation, the provision has no force or effect in regards to individuals but remains of
force and effect with respect to corporations.

R does have standing to challenge the constitutionality of the false/misleading advertising provisions under s.7 and 11(d) and may benefit
from a finding that these provisions are unconstitutional. S.36(1) and 37.3(2) of the Competition Act are worded so as to encompass both
individuals and corporations accused and are over-exclusive. Therefore, if the provisions violate an individual’s rights they must be stuck
down under s.52(1). Once the provisions are held to be no force or effect, they cannot apply to any accused, whether corporate or
individual. If the provisions applied to corporations only, the Charter analysis would be different.

• Contextual Approach: Distinguishes regulatory context from criminal context. Under criminal law, the whole focus is looking at
mens rea required to be convicted. Under regulatory, companies have acted in certain ways that may impact other individuals, to
which protection is extended.
• Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination
of the balance to be struck between individual rights and the interests of society. Context is important in delineating the scope of
the right as well as in determining if the violation can be justified under s.1.
• There is a distinction between regulatory offences and criminal offences. In criminal offences an individual chooses to act a
certain way and must be held accountable for their actions; the infringement to individual liberties is important. In regulatory
offences the offender is licensed and there are certain responsibilities which flow from that.
• Distinctive nature of regulatory activity: While in the criminal context, the essential question to be determined is whether the
accused has made the choice to act in the manner alleged in the indictment, the regulated defendant is, by virtue of the licensing
argument, assumed to have made the choice to engage in the regulated activity
• Fundamental need to protect the vulnerable through regulatory legislation: Those who choose to participate in regulated activities
have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that
responsibility
• Corporations have different interests at play as opposed to individual interests.
• The principle from Big M is extended: Big M Drug Mart was a corporation to which s.2(a) could apply, even though corporations
do not have religious rights. The court found where a corporation is charged, Big M will allow standing because no one, individual or
corporation shall be charged under an unconstitutional law.
• S.7 (life, liberty and freedom) cannot apply to corporations. S.7 only applies to violations of individuals. The same applies to
s.11(d).
• Corporations cannot be convicted under an unconstitutional law, even if it applies to individuals.

R v. Keegstra – 1990 SC

Facts:

The SC considered a constitutional attack on s. 319(2) of the CC which prohibited promoting hatred against identifiable groups. Keegstra
was an Alberta school teacher who had been instructing his students falsely about Jewish people and about the holocaust that occurred
during the Second World War. He also attributed various evil qualities to Jews and said they sought to destroy Christianity and created the
Holocaust to gain sympathy.

Issue:

Whether s.319 violated s.2(b) of the Charter? Yes. If so, can the infringement be justified under s.1? Yes.

Ratio: (Dickson, CJ.)


12
The first step of Irwin Toy is met in that the communications were made publicly and wilfully promoted hatred. The second stage is met in
that s.319(2) restricts the content of expression by singling out particular meanings that are not to be conveyed and overtly seeks to prevent
the communication of expression. Through s.319(2) Parliament seeks to prohibit communications which convey meanings which are
intended to promote hatred against identifiable groups and this are an infringement of freedom of expression under s.2(b). They cannot be
referred to as violence, as they are communicated directly without physical harm. The content of the expression is irrelevant in determining
the scope of this Charter provision. Hate propaganda is to be categorised as expression so as to bring it within s.2(b). It does not fall within
the exception spoken of in Irwin Toy, and its suppression must be justified under s.1.

The suppression of hate propaganda undeniably muzzles the participation of a few individuals in the democratic process, and hence
detracts somewhat from free expression values, but the degree of this limitation is not substantial. Nonetheless, expression can work to
undermine democracy, especially where hate propaganda denies individuals respect and dignity. Given the unparalleled vigour with which
hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be
treated with equal respect and dignity so as to make participation in the political process meaningful, protection of such expression as
integral to the democratic ideal is not central to the s. 2(b) rationale. Hate propaganda should not be accorded the greatest of weight in the
s. 1 analysis.

There are two sorts of injury caused by hate propaganda. The first is harm done to members of the target group. This impact may cause
target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group
members or adopting attitudes and postures directed towards blending in with the majority. A second harmful effect is its influence upon
society at large. In this respect, the first stage of the s.1 analysis is met. Criminal prohibition of hate propaganda obviously bears a rational
connection to the legitimate Parliamentary objective of protecting target group members and fostering harmonious social relations in a
community dedicated to equality and multiculturalism. It would be difficult to deny that the suppression of hate propaganda reduces the
harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups
in Canada. Having found that the purpose of the challenged legislation is valid, the means chosen to further this purpose are also rational in
both theory and operation, and therefore the first branch of the s.1 test is met. However, there are three primary ways in which the effect of
the impugned legislation might be seen as an irrational means of carrying out the Parliamentary purpose. First, it is argued that the
provision may actually promote the cause of hate-mongers by earning them extensive media attention. Second, the public may view the
suppression of expression by the government with suspicion, making it possible that such expression is perceived as containing an element
of truth. Finally, Germany of the 1920s and 1930s possessed and used hate propaganda laws similar to those existing in Canada, and yet
these laws did nothing to stop the triumph of a racist philosophy under the Nazis. However, the risk of hatred caused by hate propaganda is
very real, and in view of the grievous harm to be avoided in the context of this appeal, proof of actual hatred is not required in order to
justify a limit under s. 1. The presence of truth, though legally a defense to a charge under s.319(2), does not change the fact that the
accused has intended to promote the hatred of an identifiable group. There is no excessive impairment of the freedom of expression merely
because s. 319(3)(a) does not cover negligent or innocent error. Whether or not a statement is susceptible to classification as true or false,
error should not excuse an accused who has willfully used a statement in order to promote hatred against an identifiable group. Where the
likelihood of truth or benefit from an idea diminishes to the point of vanishing, and the statement in question has harmful consequences
inimical to the most central values of a free and democratic society, it is not excessively problematic to make a judgment that involves
limiting expression.

The terms of s. 319(2) create a narrowly confined offence which suffers from neither overbreadth nor vagueness. The provision possesses
a stringent mens rea requirement, necessitating either an intent to promote hatred or knowledge of the substantial certainty of such, and is
also strongly supported by the conclusion that the meaning of the word "hatred" is restricted to the most severe and deeply-felt form of
opprobrium. S.319(2) does not unduly impair the freedom of expression, and it remains only to examine whether its effects nonetheless
present so grave a limitation upon the s.2(b) guarantee so as to outweigh the benefits to be gained from a measure otherwise proportional
to an important legislative objective. When the purpose of s. 319(2) is thus recognized, there is little trouble in finding that its effects,
involving as they do the restriction of expression largely removed from the heart of free expression values, are not of such a deleterious
nature as to outweigh any advantage gleaned from the limitation of s. 2(b). The infringement of R’s freedom of expression as guaranteed
by s.2(b) should be upheld as a reasonable limit prescribed by law in a free and democratic society.

Dissent: (McLachlin, J.)

The evil of hate propaganda is beyond doubt. The content of a statement cannot deprive it of the protection accorded by s. 2(b), no matter
how offensive it may be. However, statements promoting hatred are not akin to violence or threats of violence, and that the argument that
they should for this reason be excluded from the protection of s. 2(b) of the Charter should be rejected. Confining free expression to
content that possesses redeeming or accepted value strikes at the essence of freedom, reducing the realm of protected discussion to that
which is comfortable and compatible with current conceptions. If the guarantee of free expression is to be meaningful, it must protect
expression which challenges even the very basic conceptions of society. If the activity being regulated has expressive content, and does not
convey a meaning through a violent form, then it is prima facie protected by s.2(b) of the Charter. The infringement of s.2(b) is
established, and the analysis must proceed to the test of justification under s.1.

Given the problem of racial and religious prejudice, the objective of s.319 is of sufficient gravity to be capable of justifying limitations on
constitutionally protected rights and freedoms. The real question is whether the means are proportional to the ends of suppressing hate
propaganda in order to maintain social harmony and individual dignity. He legislation furthers Parliament’s objectives, but it fails at this
stage overall. S.319(2) may well have a chilling effect on defensible expression by law-abiding citizens. At the same time, it is far from
13
clear that it provides an effective way of curbing hate-mongers. Indeed, many have suggested it may promote their cause. Viewed from the
point of view of actual effect, the rational connection between s.319(2) and the goals it promotes may be argued to be tenuous. It cannot be
said that there is a strong and evident connection between the criminalisation of hate propaganda and its suppression. The second matter
which must be considered in determining whether the infringement represented by the legislation is proportionate to its ends is whether the
legislation impairs the right to the minimum extent possible A strong case can be made that s.319(2) is overbroad in that its definition of
offending speech may catch many expressions which should be protected. It is not only the breadth of the term "hatred" which presents
dangers, it is its subjectivity. "Hatred" is proved by inference and inferences are more likely to be drawn when the speech is unpopular. A
belief that what one says about a group is true and important to political and social debate is quite compatible with and indeed may inspire
an intention to promote active dislike of that group. Such a belief is equally compatible with foreseeing that promotion of such dislike may
stem from one's statements. The result is that people who make statements primarily for non-nefarious reasons may be convicted of
willfully promoting hatred. The defense is truth. If the accused establishes that his statements are true, s.319(2) is not violated. However,
statements of opinion may be incapable of being classified as true or false.

Moreover, it is arguable whether criminalization of expression calculated to promote racial hatred is necessary. Other remedies are perhaps
more appropriate and more effective. If it is inappropriate and ineffective to criminalize discriminatory conduct, it must necessarily be
unjustifiable to criminalize discriminatory expression falling short of conduct. Greater precision is required in the criminal law than, in
human rights legislation because of the different character of the two types of proceedings. The consequences of alleging a violation of
s.319(2) are direct and serious in the extreme. Under the human rights process a tribunal has considerable discretion in determining what
messages or conduct should be banned and by its order may indicate more precisely their exact nature, all of which occurs before any
consequences inure to the alleged violator. The criminalisation of hate statements does not impair free speech to the minimum extent
permitted by its objectives.

S. 319(2) does not merely regulate the form or tone of expression, it strikes directly at its content and at the viewpoints of individuals.
These dangers are exacerbated by the fact that s.319(2) applies to all public expression. These considerations establish an infringement of
the guarantee of freedom of expression of the most serious nature; much more serious than was upheld under s.1 in Irwin Toy. S.319(2
touches on values vital to the preservation of democratic government and fundamental rights and freedoms, as well as the right to
individual self-actualization. An infringement of this seriousness can only be justified by a countervailing state interest of the most
compelling nature. The claims of gains to be achieved at the cost of the infringement of free speech represented by s.319(2) are tenuous. It
is far from clear that the legislation does not promote the cause of hate-mongering extremists and hinder the possibility of voluntary
amendment of conduct more than it discourages the spread of hate propaganda. Accepting the importance of social harmony, individual
dignity, multiculturalism, and equality, it remains difficult to see how s.319(2) fosters them. Any questionable benefit of the legislation is
outweighed by the significant infringement on the constitutional guarantee of free expression effected by s.319(2). On all three criteria for
proportionality laid down in Oakes, s.319(2) emerges wanting. Accepting that the objectives of the legislation are valid and important and
potentially capable of overriding the guarantee of freedom of expression, the means chosen to achieve them are not proportionate to those
ends.

• Contextualism: S.27 is an important aid in interpreting the definition of Charter rights and freedoms and is an element in the s.1
analysis. S.27 and the commitment to a multicultural vision of our nation bear notice in emphasizing the acute importance of the
objective of eradicating hate propaganda from our society.
• In assessing infringement of freedom of expression, "expression" was defined as embracing all content of expression regardless of
the meaning or message conveyed. Keegstra's activities had an expressive content intended to be restricted by the provisions of the
Criminal Code. S.319(2) therefore violated the right to freedom of expression.
• In assessing whether s.319(2) could be justified as a reasonable limit, the majority concluded the objective of the section in
curbing the harm flowing from hate propaganda was of the utmost importance. Thus there was a powerfully convincing legislative
objective to justify limits on freedom of expression.
• In applying the proportionality test, it was held the suppression of hate propaganda reduced the harm done to the targeted
individuals and to the relations between various cultural groups. Therefore, the means chosen to further the purpose of the legislation
were held to be rational. S.319(2) possessed a stringent mens rea requirement; it excluded private conversation, and it confined the
definition of the offence to communication directed at an identifiable group. Therefore, it did not unduly impair freedom of
expression. Promotion of hatred of identifiable groups was found to be of limited importance when measured against free expression
values. Therefore, the provision satisfied all 3 components of the proportionality inquiry set out in Oakes and the infringement was
justified under s.1.
• Majority also found s.319(3) violated the presumption of innocence. This reverse onus provision was seen to be rationally
connected to the valid objective of eliminating the willful promotion of hatred. The requirement on the accused to prove truthfulness
on a balance of probabilities was a valid precaution against too easily justifying the harm caused by the promotion of hatred, and thus
a minimal impairment on the presumption of innocence. The importance of preventing this harm was not outweighed by the
infringement of freedom of expression. The section is therefore justified under s.1.
• Result of case is to lower the bar of government justification in the criminal field. Hate is not a highly protected type of
expression. There were no competing Charter values here.
• Dissent: Provisions were inappropriate. The breadth of category of speech affected, the absolute prohibition involved the
draconian criminal consequences, the availability of alternate remedies, am the counterproductive nature of the effects of the
legislation.
14

• Both the minority and the majority agreed that the section in question infringed s. 2(b) of the Charter. They also agreed that the
objective of the legislation was pressing and substantial. They then differed on the rest of the application under s. 1.
• The limitation of the right must be reasonable?
• Is the infringement demonstrably justified in a free and democratic society?
• The majority finds that this infringement of freedom of expression can be justified under s. 1. The idea of promoting truth is not
aided by the promotion hate speech and opens minorities up to discrimination. This does not lead to the betterment of society. Hate
speech then derogates from one of the basic values of free speech. (Those values are: promotion of truth and the betterment of
society, self fulfillment, and participation in political debate.)
• Dickson: The provision of the Criminal Code seeks to prevent hate speech. The purpose of free speech is to discover truth to the
betterment of society. The idea of promoting truth is not aided by the promotion hate speech and opens minorities up to
discrimination. This does not lead to the betterment of society. Hate speech then derogates from one of the basic values of free
speech. (promotion of truth and the betterment of society, self fulfillment, and participation in political debate.)
• Can one set of Charter rights attenuate another set of Charter rights? Any balancing of rights will take place under s.1.
• Freedom of speech is not exercised in a vacuum. The right to freedom of expression must be examined from a social context;
what effect will this speech have on another group? The society of the whole unit must be considered. There will be a balancing
between individual rights and the betterment of society.
• The legislation has an overriding objective to justify the infringement of s.2(b).
• Is criminalization of hate speech reasonable? Is criminalization a proportionate means?
• The burden of proof is very high under s.319(2). The Crown must prove an intention to promote hatred and that the speech was
given in public.
• Hate speech is only tenuously connected to the values of free expression; hate speech is accorded a lower level of protection then
expression which promotes the values of free speech.
• What other options are open to the government other than criminalization? Civil remedies were open to the government such as
education.
• There are safeguards which limit the application of this section. There are a number of defences available to the accused under
section 319 which limit the application of the section. The section does not suffer from overbreadth.
• Section 319(2) can be sustained under s. 1.
• McLachlin (Dissent): The rational connection between the objective and the means employed to achieve that objective is
tenuous. A strong case can be made that the legislation is overbroad and the circumstances to which it can be applied is limitless. This
legislation fails the minimal impairment test. The benefits of criminalization of hate speech is questionable.

Jurisdiction and Remedies


Standing

• Where parties can bring an issue before a court.


• Generally thought a party can bring forward a claim if directly affected. This has since been expanded to allow individuals who
are not directly affected but have a genuine interest in the constitutionality of the issue.
• Criteria for Standing (Standing Trilogy):
1. Must raise a serious legal question.
2. Person must be directly affected or have a genuine interest in the issue.
3. No other reasonable or effective way for bringing the issue forward for resolution.
• Categories of Standing:
1. As of Right:
• Actual or potential discrimination.
• The applicant’s own rights have been violated.
2. Big M Drug Mart Exception:
• Where a corporation has been criminally or civilly charged and challenges the law, not on the basis that their own rights
were infringed, but that some individual’s were.
• Under this standing the individuals own rights have not been infringed but someone else’s rights have been violated.
• No person or corporation should be charged under an invalid law.
• Rather than having to prove the 3 criteria of the public interest the corporation can claim under this section.
• Example: Wholesale Travel: If legislation applies to corporations only, the Charter cannot be used. It can be used if the
legislation applies to corporations and individuals. Corporations shouldn’t benefit from Charter challenges because the law’s
inconsistency should stop at individuals. But in Big M, corporations were entitled to the benefit of the unconstitutionality of
infringing on individual religious rights. So, wholesale travel can also benefit, as the legislation violates s.7 and 11(d) of
individuals.
3. Public Interest:
• Parties must be directly affected or have a genuine interest.
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• Must be no other means to bring the issue forward.


• Example: Hy and Zel’s, Smith v. The Queen
4. Residual Discretion:
• If the issue is of public importance or national concern, standing will be granted.

The Interpretation of the Standing Trilogy

It is insufficient to allege that a statue may conceivably be applied unconstitutionally to others in situations which are not before the court
in order to give a party standing to challenge the validity of a state under US Constitutional law. American courts explain this principle as
resting on the conviction that under the constitutional system, American courts are not roving commissions assigned to pass judgement on
the validity of the nation’s laws. In Canada, this is different. The court has adopted a different approach to the question of standing in
recognition of the Canadian Constitution’s distinct structure; in particular s.52 which declares that laws inconsistent with the provisions of
the Constitution to the extent of the inconsistency, have no force or effect. S.52 sets out the fundamental principle of Constitutional law
that the Constitution is supreme; no one can be convicted of an offence under an unconstitutional law. A person charged with an offence
need not demonstrate that the law at issue directly infringes his or her constitutional rights in order to obtain standing to raise a
constitutional challenge. That is not to say, however, that the facts that an accused’s conduct clearly falls within the ambit of the law is
irrelevant to the question of whether the law is unconstitutionally vague. Rather, the fact that there is some identifiable core of activity
prohibited by the law will often be a strong indicator that the terms of the law provide sufficient guidance for legal debate. Further, the fact
that an accused has standing to challenge a law does not inevitable mean that he or she will benefit from a finding that the law is
unconstitutional, since there is always the possibility that the court might be able to sever or read down the offending provisions so as to
maintain its applicability to the accused’s particular case.

The recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing
to all who wish to litigate an issue. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the
unnecessary proliferation of marginal or redundant suits brought by well-meaning organisations pursuing their own particular cases certain
in the knowledge that their cause is all important. The whole purpose of granting status is to prevent the immunization of legislation or
public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be show
that the measure will be subject to attack by a private litigant. The principles for granting public standing se forth by the SC need not and
should not be expanded. The decision whether to grant status is a discretionary one with all which that designation implies. Thus,
undeserving application may be refused. Nonetheless, when exercising the discretion the applicable principles should be interpreted in a
liberal and generous manner.

Hy and Zel’s Inc. v. Ontario AG – 1993 SC

Facts:

The Appellants challenged orders made pursuant tot eh Retail Business Holidays Act and its amendments requiring them to close on
Christmas Eve, Christmas Day and Boxing Day. Although the Act had been held up in R v. Edwards Books and Art, the amendments were
sufficiently great as to put the Act’s constitutional validity into doubt again. The Appellants sought a declaration that the Act infringed on
s.2(a) (freedom of religion) and/or s.15 (equality) of the Charter.

Issue:

Whether the Retail Business Holidays Act is an infringement on s. 2(a) and/or 15 of the Charter? There is no standing for this issue.
Appeal dismissed.

Ratio: (Major, J.)

In order that the court may exercise its discretion to grant standing in a civil case and the party does not claim a breach of its own rights
under the Charter but those of others, there must be a serious issue as to the Act’s validity, the appellants must be directly affected by
the Act or have a genuine interest in its validity, and there must be no other reasonable and effective way to bring the Act’s
validity before the court. In regards to the first criteria, validity of the Act has been challenged before. In Edwards Books, the act was
held to violate s.2(a) but was a reasonable limit under s.1. While the Act affects all Ontarians by limiting their ability to make retail
purchases on holidays, only retailers and retail employees are subject to prosecution for its violation. Second, the Act clearly has a direct
affect on the appellants.

A court’s ability to consider standing at the outset depends on the nature of the issues raised on whether the court has sufficient material
before it, in the way of allegations of fact, considerations of law, and argument, for a proper understanding at a preliminary stage of the
nature of the interest asserted. Since A’s case has proceeded without trial, the situation is akin to determining standing as a preliminary
point. A alleges a violation but has presented almost no original evidence in support of the claims. This suggests that there may be a more
reasonable and effective matter of bringing this matter before the court. The nature of the Act does not assist A in establishing standing. A
party seeking to challenge the Act must show there is no other reasonable and effective means of bringing the matter before the court. A
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has failed on this point and does not satisfy the third criteria for public interest standing to challenge the Act. A also does not have standing
on the basis that their own religious rights have been violated. Assuming that corporations can have religious rights, there is no evidence
that they have been violated.

• Corporations cannot have religious rights.


• Here, the parties are seeking a declaration that the Act infringes s.2(a) and 15. The company has not been charged under this act,
but has been ordered to close the business under s.8 of the act. They claim an infringement on behalf of those who want to shop on the
prohibited day.
• This is a valid legal issue. The claimants are directly affected by the legislation in that they could be charged in violation of the
Act. But there could be a more reasonable and effective way to bring the matter forward. A party will be in a much better position to
gain public interest standing where they have direct evidence that they are affected by the law in question.
• The issue needs to be actual, supported by facts, and not something abstract before standing can be acquired. Employees would be
in a better position to bring the challenge. The courts should take a more purposive approach to cases of standing rather than simply
look at the issues in the abstract. The focus in these cases should be in respect to the law the parties seek to challenge rather than the
individual idiosyncrasies of the parties in the case.
• Must find an appropriate balance so that legislation is not immunized and the court resources are not wasted by fruitless Charter
claims.
• Smith v. The Queen is not a relevant case because A is not showing any prejudice.
• Could the ruling from the Egg Marketing case make a difference? Maybe. One could claim even though they are coming
voluntarily, and not from force of the state, that provisions and s.8 proceedings would impact other individuals.
• The rationale for the test for standing: Allocation of judicial resources vs. immunity of laws in terms of review.
• The 1st criterion of the test is met: The legislation had been challenged in the Edwards Books case but had since been amended
and thus the court examines the issue again.
• 2nd criterion: The Act has a direct effect on the corporations in question as they are liable for prosecution under the Act.
• 3rd criterion: A must show that there is no other way the matter may be brought before the court in order to gain public interest
standing; they fail on this point. Here, the court says that the fact that A is relying on another case is proof itself that there is a
better way to being the issue before the court.

Dissent:
• If Smith v. The Queen could allow the claim to come forward why should the public interest standing test quash it? Smith is a
more restrictive approach, so why shouldn’t the less restrictive approach be met?
• Under the Smith test, P was required to establish that the effect of the legislation was greater or different than its effect on the
public at large. P also had to establish that the legislation affected the personal, proprietary, or pecuniary rights of P.
• Even if the public interest standing test is applied to the litigants they still succeed in proving that they have sufficient standing.
They are subject to orders which could result in prosecution and thus they have a special interest in the issue.
• Be mindful not to waste the court’s time. If this company is going to be charged and have to go through the lower courts
(establishing standing in terms of appeal) what not just dial with it now? Don’t waste resources in the lower courts.

Canadian Egg Marketing Agency v. Richardson – 1998 SC

Facts:

R is the only NWT egg producer and markets eggs in intra-provincial and inter-provincial trade. A is in charge of regulating the inter-
provincial trade in eggs and allocates federal egg quotas to each of the 10 provinces, but not to either territory. Under the federal part of the
egg marketing scheme, a federal quota and licence are needed to produce and market eggs for inter-provincial and export trade. The effect
of the exclusion of the NWT Is that no eggs produced in the NWT can lawfully be marketed inter-provincially or exported. In 1992, A
sued R for damages arising from illegal inter-provincial marketing of eggs. They were producing and marketing eggs outside the NWT
outside the quota and licensing system. It also brought an injunction preventing them from marketing their eggs in inter-provincial trade. R
challenged the constitutional validity of the federal egg marketing legislation.

Issue:

Whether R has standing to challenge the legislation? Yes.

Ratio: (Iacobuccie, J. and Basterache, J.)

A submits that as a corporation, R cannot claim to enforce the constitutional rights in s.2(d) and s.6 of the Charter, which protect
individuals only. While acknowledging the one of the respondents is an individual, A asserts that Richardson conducts his business
through a corporation. A also argues that public interest standing is not available to defendants in a civil proceeding. Where a case has
been fully argued on the merits then, notwithstanding that in the general argument, it may appear that the plaintiff has no status to maintain
the action, if he question involved is one of public importance then the court has discretion to decide the case on merits.
17

The constitutionality of the marketing scheme is clearly of national importance. Prior to the decision of Big M, respondents could not
obtain standing to invoke the Charter using the exception created because they were not facing penal proceedings. It is now time to expand
the exception to allow corporations to invoke the Charter when they are defendants in civil proceedings instigated by the state or a state
organ to a regulatory scheme. Generally, standing can be granted under four broad heads; as of right, the Big M exception, public
interest standing, and under residuary discretion. For this case, residuary discretion applies. Under Big M, a corporation can invoke
s.2(a) of the Charter, which protects freedom of religion, even though a corporation cannot hold religious beliefs. This logic can be
extended to give standing to R. R has been put in jeopardy by a state organ bringing them before the court by an application for an
injunction calling in aid a regulatory scheme. Success of that application could result in enforcement by contempt proceedings. If the
foundation for these remedies is an unconstitutional law, it appears extraordinarily that a defendant cannot be heard to raise its
unconstitutionality solely because the constitutional provision which renders it invalid does not apply to a corporation. Someone in the
position of R should not have to seek public standing. They do not seek to attack the legislation out of public interest but to defend
themselves against a law that is sought to be applied to them against their will which will directly affect private interest.

• CEMA was a federally regulated body for the egg marketing scheme. R argues that the legislation violates freedom of association.
• R cannot gain standing as of right because he is under a corporation. S.2(a) and 6 are not rights a corporation can hold. Thus,
residuary standing was granted. If the issue doesn’t fit under the other criteria, the court can hear it if it was under national importance
(an important issue that otherwise would not be heard by the courts).
• Big M exception extended to allow corporations to invoke the Charter in civil proceedings. Depending on how the civil ruling
goes, a defendant could be in the position of facing criminal sanctions which would satisfy the penal implications of invoking the
Charter for a corporation. Also, that CEMA is a federal body is also of importance. He has been affected by an organ of the state and
must defend himself. (He was coerced to come before the courts) He should have the opportunity to argue the law is unconstitutional.
• Residuary Discretion/Standing: In this case, had it not met public interest, standing could have been granted under residual
discretion.
• Residuary Standing: Must have two have two facets:
1. Matter of national significance of importance
2. Has to have the court listen to the case and then grant its judgment on standing after hearing all of the facts
• Court said because R had been involuntarily brought before the courts by a regulatory agency of the state, he is subject to
remedies that the regulatory agency is claiming against him. That situation is analogous to a company that is charged with an offense
(Big M) and should be able to argue it as an unconstitutional law.
• This case is important for expanding the category that began with Big M and now applies residual standing to artificial
entities that have involuntarily been brought forward into civil proceedings by the state.
• In this case R, the corporation could have been charged with an offense, but CEMA decided to proceed against them in
civil litigation and not criminally.

Corporations and Charter Rights

There are two was in which a corporation can benefit from Charter protection:
1. The protection is applied directly to the corporation.
2. The corporation can show that the impugned provision would, if applied to a natural person, infringe a Charter right without
justification and would for that reason, be without force or effect.

In order to determine whether Charter protection extends directly to corporations, some writers have suggested concentrating on the
wording of the subject in each section. Rights are guaranteed to “everyone” in some sections, “Canadian citizens” or “every individual” in
others. Concentration on the literal meaning of these words may be incompatible with the broad, liberal and purposive analysis of the
words the Charter requires. To properly regard corporations, it would be more appropriate to look at the interest protected and determined
whether that interest is capable of being held by a corporation. S.15 is exceptional, where “everyone” was replaced with “every individual”
in order to limit its application to natural persons exclusively. Even under a purposive analysis, it is difficult to determine how a
corporation might be protected under equality rights. A corporation also cannot avail itself of the protection afforded by s.7. “Everyone” in
s.7 excludes corporations and other artificial entities incapable of enjoying life, liberty or security of person, and includes only human
beings. However, representatives of a corporation may receive the benefit of immunity protection in so far as they are personally
implicated by their own evidence. In regards the s.2(a), it has been decided that to some degree, corporations can enjoy some degree of
freedom of expression.

Justiciability ad Political Questions

• Justiciability: Question has sufficient legal components, even though they are political, so they must be answered. This is the
most important forum. An issue is non-justiciable if it is purely political in nature.
• Applicable to reference questions.
• Components:
1. Sufficient legal question or issue.
18

2. The question is precise and unambiguous as to allow an answer.


3. There is sufficient information or evidence to allow an accurate answer.
• Whether the matter is an appropriate issue for the courts to answer or rule on.

Reference Re Canada Assistance Plan – 1991 SC

Facts:

The Canada Assistance Plan was an agreement with the provinces to contribute towards social programs. It was a focus on contributing to
“have not” provinces versus “have” provinces. It had a procedure for alteration or termination, but Canada terminated it under the
Government Expenditures Restraint Act (1991) which did not follow procedure. BC, Alberta Challenged the unilateral cancellation.

Issue:

1. Has the government any authority to limit its obligation under the Canada Assistance Plan or its agreement thereunder with BC?
Yes.
2. Do the terms of the agreement between Canada and BC, the subsequent conduct of the federal government under the agreement
and the provisions of the Plan give rise to a legitimate expectation that the government would introduce no legislation to limit its
obligation under the agreement or the plan without the consent of BC? No.

Ratio: (Sopinka, J.)

While there may be many reasons why a question is non-justiciable, in this appeal the AG Canada submitted that to answer the questions
would draw the court into a political controversy and involve it in the legislative process. In considering its appropriate role, the court must
determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a
sufficient legal component to warrant the intervention of the judicial branch. Even if a question is partially political but possesses a
constitutional feature, it would legitimately call for the court’s reply. Questions that pose a sufficient legal component will warrant a
decision from the court. Since only a court can authoritatively resolve a legal question, its decision will serve to resolve a controversy or it
will have some other practical significance. Here, the first question requires the interpretation of a statue of Canada and an agreement. The
second raises the question of the applicability of the legal doctrine of legitimate expectations to the process involved in the enactment of a
money bill. A decision on these questions will have a practical effect of settling the legal issues in contention and will assist in resolving
the controversy.

• In considering its appropriate role, the court must determine whether the question is purely political in nature and should
therefore be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial
branch.
• Question had sufficient legal components, even though they were political, so they must be answered. This is the most appropriate
forum (standing). Court should maintain its proper role, which is non-political and non-legislative. There must be a legal component.
Here, the questions involved a statute, an agreement and the doctrine of legitimate expectations. Therefore the matter is justiciable.

Reference Re Secession of Quebec – 1998 SC

Issues:

1. Can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?
2. Does international law give the National Assembly, legislatures or government of Quebec the right to effect the secession of
Quebec from Canada unilaterally? Is there a right to self-determination under international law that would give the National
Assembly, legislature or government the right to effect the secession of Quebec from Canada unilaterally?
3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government
of Quebec to effect the secession of Quebec from Canada unilaterally which would take precedence in Canada?

Ratio: (The Court)

It is submitted that even if the court has jurisdiction over the questions referred, the questions themselves are not justiciable. Three main
arguments are raised:

1. The questions are not justiciable because they are too theoretical or speculative.
2. The questions are not justiciable because they are political in nature.
3. The questions are not yet ripe for judicial consideration.
19

The court may deal with references with issues that might otherwise not ripe for decision because the court is acting in an advisory
capacity and is engaged in an exercise it would never entertain in the context of litigation. However, the court should never entertain
questions that are inappropriate to answer. Thus the circumstances in which the court may decline to answer a reference question on the
basis of non-justiciability include:

1. If to do so would take the court beyond its own assessment of its proper role in the constitutional framework of our democratic
form in government, or
2. If the court could not give an answer that lies within its area of expertise; the interpretation of law.

As to the legal nature of the questions posed, 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. In the present case, the questions may clearly be interpreted as directed to legal issues and so interpreted, the court is in a position
to answer them. The court must still determine whether it should exercise its discretion to refuse to answer the questions on a pragmatic
basis. Generally, the instances in which the court has exercised its discretion to refuse to answer a reference question that is otherwise
justiciable can be broadly divided into two categories:

1. Where the question is too imprecise or ambiguous to permit a complete or accurate answer.
2. Where the parties have not provided sufficient information to allow the court to provide a complete or accurate answer.

There is no doubt that the questions posed here raise difficult issues and are susceptible to varying interpretation. However, rather than
refusing to answer at all, the court is guided by the approach advocated by the majority on the conventions issue raised in Reference Re
Resolution to Amend the Constitution: If the questions are thought to be ambiguous, this court should not, in a constitutional reference, be
in a worse position than that of a witness in a trial and feel compelled simply to answer yes or no. Should it find that a question might be
misleading, or should it simply avoid the risk of misunderstanding, the court is free either to interpret the question or it may qualify both
the question and the answer. Here, it cannot be said that the questions are too imprecise or ambiguous to permit a proper legal information
regarding the present context in which the questions arise.

• Is there a sufficient legal component? Yes, there is a significant extra-legal component.


• If the reference questions are broad but the courts could rule narrowly, this is the role of the court. Also, in the presence of
sufficient legal evidence, the court will have justiciability.
• It was argued that the court was usurping democratic process, as the question was political in nature. SC response was that advice
is regarding the legal context and the framework Quebec has to operate within to secede. The court is not ruling on whether secession
is a good or bad thing, it is ruling on the legal framework that those decisions have to be made within.
• Also argued that on pragmatic reasons, the court should decline to answer questions on this case. SC response was that in those
circumstances they would qualify the questions. It was not a barrier for the court to entertain particular questions. It may decide to
interpret the questions in a certain way to make them more precise.

Section 32 Action

• Who is a proper defendant in a constitutional claim and what sort of action on the part of that defendant can be challenged under
the Charter.
• Government actor v. government action.

Government Actors – Direct


1) Legislature
2) Executive
3) Administration branch: Those bodies designated with discretionary powers pursuant to legislation.
4) Judiciary
• The simple fact of engaging the courts did not amount to a govt action in the constitutionally relevant sense.
• Charter will not apply (directly) if court is resolving a private dispute between individuals. Ex: a court order is not a
government action.
5) Other entities: Entities that have public aspects to them, such as hospitals, universities or colleges, will be considered government
actors where government has “routine or regular control” over their activities.

Government Action – Indirect


• Govt action is present when govt requires an individual to act in a stipulated way, or to refrain from acting. Also present where
govt makes promises, or engages in risk-creating activities.
• Where there is a government actor, all the activities of that actor will be subject to Charter scrutiny, not just traditional
government activities.
• Charter will apply to non-government actors or entities where they are implementing a specific government program or policy
(only to the extent implementing policy or program). It will not apply to all actions of non-government activities.
20

• Direct: S.1 analysis, onus shifts.


• Indirect: No s.1 analysis, onus is on the claimant.

S. 32(1) – Application of the Charter

32 (1) This charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all
matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each
province.

(2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

RWDSU v. Dolphin Delivery Limited – 1986 SC

Facts:

RWDSU was a federally certified bargaining agent for Purolator. Purolator had locked out its employees during a labour dispute. Prior to
the lockout, Dolphin made deliveries for Purolator and then for Supercourier, a company connected with Purolator. RWDSU applied to the
BC Labour Relations Board for a declaration that Dolphin and Supercourier were allies of Purolator in their dispute. Such a finding would
have rendered the picketing of Dolphin’s premises lawful. The relevant collective agreement provided that refusal to cross a lawful picket
line was not a violation of the agreement or grounds for disciplinary action against employees. The Labour Board declined to hear the
application for want of jurisdiction as labour relations with RWSDU were within federal jurisdiction. The legality of the union’s proposed
picketing then fell under the common law because the Canada Labour Code was silent on the issue. Dolphin was granted an injunction
against the proposed picketing, which was upheld on appeal.

Issue:

Whether secondary picketing in a labour dispute is protected as freedom of expression under 2(b) of the Charter and accordingly not the
proper subject of an injunction to restrain it?

Ratio: (McIntyre, J.)

While in political science it is acceptable to treat the courts as one of three fundamental branches of Government, one cannot equate for the
purpose of Charter application the order of a court with an element of governmental action. It is the duty of the courts to apply the law, but
in doing so they act as neutral arbiters, not as contending parties involved in a dispute. To regard a court order as an element of
governmental intervention necessary to invoke the Charter would widen the scope of Charter application to virtually all private litigation.
All cases must end with an enforcement order and if the Charter precludes the making of the order, where a Charter right would be
infringed, it would seem that all private litigation would be subject to the Charter. This approach will not provide the answer to the
question. A more direct and precisely defined connection between the element of government action and the claim advanced must be
present before the Charter applies.

• Inter-provincial undertaking, so under federal jurisdiction. (Under the Canada Labour Code)
• Issue: Whether secondary picketing is legal?
• Canada Labour Code did not deal with secondary picketing, although the common law did. The claim was that the Labour Code
violated Charter rights in the ability to picket.
• Does the Charter apply to common law? No. S.32 applies to all levels of government. If the Charter applies to court orders, every
time a ruling is made, even if it doesn’t apply to a government but is a civil matter, the courts will be open to Constitutional/Charter
challenges.
• For the Charter to apply, it is necessary to have some sort of government intervention/intrusion. Example: A statutory provision
specifically outlawing secondary picketing of the type subject to the injunction. Since no such governmental action, Charter did not apply
– appeal dismissed.
• Even though courts can be thought of as government, where the court is acting pursuant to the common law in a dispute between
parties that is not the type of action the Charter should be applied to.
• The proper way to interpret s.32 is that it applies to government actors and government entities.
• The Charter should not apply to private parties because there would be too many constraints on individual actions which would
clog up the courts with private matters. Floodgates argument: To regard a court order as an element of governmental intervention
necessary to invoke the Charter would widen the scope of Charter application to virtually all private litigation.
• Order of court should also not be under the scrutiny of the Charter, especially concerning private matters where the common law
applies. To regard a court order as government action would widen the scope of Charter application to virtually all private litigation. A
21

more direct and precisely-defined connection between the claim advanced and government action must exist.
• This issue is a private dispute with private litigants, not governed by legislation but the common law. This potentially narrows the
ability for claimants to challenge an issue.
• There are other remedies for private parties facing violations, such as provincial human rights legislation. However, these are not
usually as broad as the Charter. Example: Breadth of s.15.
• Even though courts can be thought of as government, where the court is acting pursuant to the common law in a dispute between
parties that is not the type of action the Charter should be applied to.

Lavigne v. OPSEU – 1991 SC

Facts:

R, the Ontario Council of Regents for Colleges of Applied Arts and Technology, was established under s.5(2) of the Ministry of Colleges
and Universities Act. Under the act, it has the task of assisting the Minister in the planning and establishment of programs for the colleges.
Its members are appointed by the LG in Council. The Colleges Collective Bargaining Act designates the Council of Regents as the
bargaining agent for the college employers. The Council has entered into a collective agreement with R, the Ontario Public Service
Employees Union, which represents community college teachers. Since 1974, A has been a teaching master and is a member of the
academic staff bargaining unit represented by the union, but has never become or been required to become a member of the union. He was,
however, required to pay dues to the union. These are deducted from his pay cheque under the terms of the collective agreement and are
paid into the general revenues and used for any purpose authorized by the union’s constitution. Under the union’s constitution, certain
percentages of the dues are paid to the National Union of Provincial Government Employees, which in turn pays dues to the Canadian
Labour Congress. The union is also a member of the Ontario Federation of Labour. Each of these organisations, including the respondent
union, uses its dues to support union-related causes. Specifically the union is required to regulate labour relations between its members and
their employers including such matters as collective bargaining. A challenged expenditures made by the union such as financial
contributions to the NDP, disarmament campaigns, striking UK coal miners, the opposition of the expenditure of municipal funds of the
SkyDome, and pro-choice groups respecting abortions. The Colleges Collective Bargaining Act allows for the compulsory payment of
dues. A regulation provided that deductions could only be used for purposes relating to representation of employees and not for activities
relating to political parties, but was repealed in 1977.

Issue:

Whether the Rand formula, under which dues may be collected from non-union members of a collective bargaining unit for use by the
union in its discretion, infringes the non-union members’ freedom of association and of expression guaranteed by s.2(d) and 2(b) in a
situation where the employer is a Crown agency and the dues are distributed to causes unrelated to the collective bargaining process? Yes.

Ratio: (LaForest, J.) Sections in italics concern s.2(d).

It was argued that since the union is clearly a private entity, its spending decisions are not amenable to a Charter challenge. It is incorrect
to characterise the challenge as one confined to the constitutionality of the union’s expenditure decisions. The constitutional challenge
mounted by A impugns the conduct of the Council of Regents or the Ontario Legislature in permitting the use of his contributions for
purposes unrelated to collective bargaining. While the conduct of the union is an essential component of A’s case, it need not be looked
upon as the direct focus of the constitutional challenge, but rather as part of the actual context in which the constitutionality of the conduct
of the Council or Legislature must be assessed. A can argue his freedom of association and expression was violated by entering into an
arrangement forcing him to contribute to the union knowing that it would spend the money on things that have only a minimal or no
relation to collective bargaining.

A also argues that his rights were violated by the joint operation of the legislative decisions to allow the Council to compel him to
contribute to the union and by the Council’s undertaking to the union to compel such contribution. No legislation compels him to make
contributions to the union. What compels him is article 12 of the collective agreement signed by the union and Council, which parties
would be free to agree to. Such provisions are not illegal or invalid in the absence of legislative prohibition. Section 53(1) of the Colleges
Collective Bargaining Act affects no one’s rights until it is activated by the agreement between the union and the Council and can be said
to be the immediate cause of the violation A alleges.

The exercise of a general power under a provision of a collective agreement or other contract in the private sector would not be invalid
simply because private parties acted in a manner contrary to the Charter. The Council of Regents is an emanation of government. As in
Douglas College, its status is wholly different from the universities which, though regulated and funded by government, are essentially
autonomous bodies. Therefore, the Council is a Crown agent. The next question must be whether the Council’s agreement to the inclusion
of article 12 and the obligation it imposes on persons such as A is government conduct. The union argued that the article cannot be
construed as government activity because it was included in the collective agreement at the insistence of the union, not the Council. Even
if this is true, it does not follow that the obligation it imposes on A to contribute cannot be attributed to government. The content of article
12 is crucial. It represents an undertaking on behalf of the Council, as an agent for the community colleges of Ontario, to deduct union
dues from every employee within the bargaining unit. It is the performance of this undertaking by the government entities which the
22

Council represents in collective bargaining that forces persons in the position of A to contribute to the union. Article 12 is as much the
result of the Council’s undertaking to deduct union dues at source as it is of the desire of the union to have such deduction made on its
behalf. Even if the inclusion of article 12 was not the result of government action, the performance of the undertaking must qualify as
government action.

It is also unrealistic to think of the relationship between those who govern and those who are governed solely in terms of the traditional
lawmaker and law-subject model. Government activities which are in the form of commercial or private transactions are in reality
expressions of government policy. To say the Charter is only concerned with government as lawmaker is to interpret the Constitution in
light of an understanding of government that was long outdated even before the Charter was enacted. The Charter is not indented to serve a
simply negative role by preventing the government from acting in certain ways. It has a positive role as well, which might be described as
the creation of a society-wide respect for the principles of fairness and tolerance. It cannot be that this less tangible but equally important
aspect of the Charter’s rile in society would be advanced if the Charter’s applicability fell to be determined by reference to the
government’s commercial competitiveness. The extent to which government adherence to the Charter can serve as an example to society
as a whole can only be enhanced if the government remains bound by the Charter even when it enters the marketplace.

Freedom of association is meant to protect the collective pursuit of common goals. This is not to deny, however, that there is a community
interest embodied in freedom of association. This interest might be expressed as the interest of society at large in the contributions in
political, economic, social and cultural matters which can be made only if people are free to work in concert. The question is whether the
protection of this community interest and the antecedent individual interest requires that freedom from compelled association be
recognized under s.2(d). Forced association will stifle the individual's potential for self-fulfillment and realization. Society cannot expect
meaningful contribution from groups or organizations that are not truly representative of their memberships' convictions and free choice.
Instead, it can expect that such groups and organizations will, overall, have a negative effect on the development of the larger community.
The test should not be whether the payments may reasonably be seen as association, or must indicate to any reasonable person that the
individual has associated himself with an ideological cause. An external manifestation of some link between the individual and the
association is not a prerequisite to the invocation of the right; it is enough that the individual's freedom is impaired. Can forced payment to
the union be said to impair this freedom? Four aspects of association have been identified: the right to establish, belong to and maintain
organizations, and to participate in their activities. The relevant question is whether the payment of dues falls into any of these categories
of association. Financial contribution to an organization alone may constitute association within the meaning of the Charter.

The right of an individual to refrain from associating with others is a qualified one. There are four primary dangers to those interests which
various forms of forced contributions to service associations may represent and which a doctrine of freedom of non-association should
guard against. The first is governmental establishment of, or support for, particular political parties or causes. The second is impairment of
the individual's freedom to join or associate with causes of his choice. The third is the imposition of ideological conformity. The fourth is
personal identification of an objector with political or ideological causes which the service association supports. If one of these dangers is
present in a governmentally supported scheme for forced payments in return for services, then the potential exists for interference with a
free and deliberative democratic process or infringement of the individual liberty interest in freedom to develop one's self-potential, and
the compelled association should be held to be prima facie violative of subsection 2(d). A has discharged the burden of establishing that his
rights under the Charter have been infringed in this case. Expenditures relating to items such as the disarmament movement and opposition
to the SkyDome violate his freedom of association under s.2(d), as these expenses are not sufficiently related to the concerns of his
bargaining unit, or to the union's functions as exclusive bargaining representative.

There is a rational connection between the state objectives identified, which is to encourage union democracy and to permit unions to be
players in the broader political, economic and social debates in society, and the means chosen to advance those objectives, the requirement
that all members of a unionized workplace contribute to union coffers without any guarantee as to how their contributions will be used.
Compelling contributions by all represented by the union, all who benefit from the union's attempt to push the general political, social and
economic environment in a direction favourable to unions and their members, provides the union with the stable financial base needed to
underwrite political, economic and social activism. It has the effect of promoting democratic unionism. In terms of minimal impairment, it
would be argued that the state objectives of fostering a politically active union movement guided by democratic decision-making could be
achieved while more fully respecting the rights of those in the position of A. They could simply be given a right of opting out, although
this could undermine the union’s financial or membership basis.

(Wilson, J. & L’Heureux-Dube, J.)

To include a negative freedom of association within the compass of s.2(d) would set the scene for contests between the positive
associational rights of union members and the negative associational rights of non-members. To construe the section in this way would
place the court in the impossible position of having to choose whose s.2(d) rights should prevail. If it were the case that s. 2(d) protected
such compelled associations, all taxpayers with a grievance to air would theoretically be able to come before the courts and insist that each
tax expenditure be subjected to analysis under s.1. As soon as the court is placed in the position of having to choose between meaningful
and trivial constitutional claims, an opening for the exercise of arbitrary line-drawing has been created. On the other hand, it would be an
abdication of the court's responsibility to ensure access to justice if it turned a blind eye to the problems which recognition of a right not to
associate will generate.
23
S.2(d) should not be expanded to protect the right not to associate. Other Charter guaranteed rights and freedoms adequately protect the
type of interests which underlie claims based on a right not to associate. The real harm produced by compelled association is not the fact of
the association itself but the enforced support of views, opinions or actions one does not share or approve. To hold that s.2(d) does not
include the right not to associate does not leave those who do not wish to associate without redress for these harms. S.2(b) and 7 would
seem to be available in appropriate cases. S. 2(d) includes only the positive freedom to associate. The question remains whether A’s
freedom of association has been violated in this case. He has not been prevented from forming or joining associations of his choosing and
therefore, his right to freely associate has not been infringed and this ground of appeal must accordingly fail.

There are two ways in which the Charter may be invoked. First, the Charter applies to acts of government. This includes both traditional
and non-traditional ideas of governments. Second, an activity will be subject to Charter review if, even although the act was not performed
by “government,” it was subject to such significant government control that it may effectively be considered an act of government for
Charter purposes.

Unions are not generally government entities, but that does not mean they cannot be considered to be part of government for the purpose of
s.32. Some unions are so intimately connected with government that their actions will be subject to constitutional scrutiny. Here however,
OPSEU is not in such a symbiotic relationship with the government and consequently its actions standing by themselves do not fall within
the scope of s.32. However, if the collection of dues pursuant to the Rand formula is somehow governmental in nature, and one of the
effects of this governmental action is that dues are spent in constitutionally offensive ways, then it seems that union spending may well
factor into the constitutional analysis. It is clear that the Council is controlled (control test) by the government. It is a statutory body
designated by the legislation as a Crown agent and entirely composed of members appointed by the LG in Council, whose purpose is to
assist the minister. Thus, these entities should be regarded as part of government for the purpose of s.32. In Douglas, it was found that
education institutions are creatures of government. This includes colleges. The provision of education at the community college level is a
function (government function test) of modern government. Colleges, as agents of the Crown, are empowered to conduct affairs through
their enabling statutes (authority), and education services are in the public interest. This meets the statutory authority and public interest
test. The fact that the impugned action is a product of the joint effort of government and a private entity does not make that action any less
governmental for the purpose of s.32(1). Were it otherwise, al government contracts would be immune from judicial review. In many
respects, the away governments conduct their affairs serves as a model for organisation in the private sphere.

• Whether the council is part of the fabric of government as a government actor. What about the union? The union is a private
actor, so it is difficult to claim that the Charter applies. The courts says that the agreement governing the union is connected to the
Ontario Council of Regents, who is potentially a government actor, so the council is acting like a government agent. Article 12
arises from permissive legislation, the Colleges Collective Bargaining Act, which represents the undertaking to collect dues. The
legislation itself is not in violation, but article 12 is different and can be subject to Charter scrutiny. Members of he council are
also appointed by the government, unlike universities, who are autonomous.
• Is this commercial activity to which the Carter should not apply? No. When it is already decided that the entity is a
government actor, the fact that it acts in a commercial or private capacity doesn’t matter. All government activity applies to the
Charter. The government can then serve as a model for actual private entities.
• Test of Routine and Regular Control: Whether government is exercising routine and regular control over that entity. If so,
this determines that we are dealing with a government actor. If we are dealing with a government actor, then all activities of that
government actor, whether traditional or not, will be subject to the Charter. The only exception to this broad principle is the
exception from Dolphin Deliveries regarding court orders made as the result of private actions.
• Government actions are not going to be excluded from scope of the Charter just because they are non-traditional activities
such as collective bargaining.
• One of the arguments made for why the Charter should not apply was the idea that it would hinder the government when
dealing with private actors. The majority of the Court did not accept this argument. The government remains bound to the
Charter even when they choose to enter into the market place. It should be held to a higher standard as a role model for private
industry.

What do the Dolphin Deliveries Case and the Lavigne Case tell us about the applicability of the Charter?
• The Charter does not apply to private actors. It is clear that it does apply to the legislative branch and the executive
branch.
• The Charter will not apply to court orders in private actions involving the common law. If there is a public aspect to the
application of the common law then that is something that is subject to the Charter. If the government exercises routine and
regular control over other entities, such as colleges and hospitals, then the Charter will apply.
• Once an entity has been found to be a government actor pursuant to the routine and regular control test, then all actions of
that entity will be subject to the Charter.
• The legislation in Eldrige did not say that sign language interpretation was going to be unavailable. Because the legislation
gave broad direction to hospitals and the commission the legislation was not itself the source of the violation. The violation
was the decision of the hospital and the commission not to provide these services.
• The first step in the analysis is to determine what the source of the violation is.
24

Section 2(d) Application:


• McLachlin: Freedom not to association does not include forced payments. Lavigne isn’t forced to think a certain way; there is
no evidence of forced ideological conformity. If freedom not to associate was protected, it would be freedom from authority or
freedom to be compelled from holding certain views.
• La Forest: Violation, but upheld under s.1. Lavigne has to keep paying union dues. There is a rational connection and
minimal impairment in that there is no reasonable alternative. It would also be overly paternalistic for the government to create
regulations on dues used for political purposes.

Eldridge v. BC AG – 1997 SC

Facts:

In BC, hospitals deliver services under the Hospitals Insurance Act, which requires the government to reimburse hospitals for the
“medically required service” they provide to the public. Doctors and other health care workers deliver services under the provincials
Medical Services Plan (established and regulated by the Medical and Health Care Services Act), which requires government to fund
“medically required services. Neither program pays for sign language interpretation for the deaf. It was provided by a non-profit
organisation but the program was terminated due to costs and lack of government funding. Both of the appellants were born deaf. A
contends that because of a communication barrier that exists between deaf persons and health care providers, they receive a lesser quality
of medical services than hearing persons and thus infringes their right to equal benefit of the law without discrimination based on physical
disability.

Issue:

Whether a provincial government’s failure to provide funding for sign language interpreters for people that are deaf when they receive
medical services violates s.15 of the Charter? Yes. Whether, and in what manner, the Charter applies to the decision not to provide
language interpreters for the deaf as part of the publicly funded scheme for the provision of medical care?

Ratio: (LaForest, J.)

There are two distinct Charter application issues in this case. The first is to identify the precise source of the alleged s.15(1) violation. It is
not the impugned legislation that potentially infringes the Charter but rather the actions of particular entities exercising discretion
conferred by that legislation. The second is whether the Charter applies to those entities. The charter applies to both in so far as they act
pursuant to the powers granted to them by statutes. The Charter can apply to provincial legislation in two ways. First, legislation may be
found to be unconstitutional on its face because it violates a Charter right and is not saved by s.1. In such cases, the legislation will be
invalid and of no force or effect. Second, the Charter may be infringed, not by the legislation itself, but by the actions of a delegated
decision-maker in applying it. In such cases, the legislation remains valid, but a remedy for the unconstitutional action may be sought
pursuant to s.24(1) of the Charter. In the present case, the latter is of importance. The Medical and Health Care Services Act and its failure
to provide expressly for sign language do not violate s.15 of the Charter because it delegates to power to make that determination to a
subordinate authority. Thus, it is the decision of authority that is constitutionally suspect, not the statute. The same can be said for the Act.

With the exception of hospitals, which are the responsibility of the provinces by virtue of s.92(7) of the Constitution, health is not a matter
assigned solely to one level of government. However, hospital insurance and Medicare programs come within the jurisdiction of the
provinces under ss.92(7), 92(13) and 92(16). The Act confers discretion on the Medical Services Commission to determine which services
should be included. It does not prevent the Commission from including sign language interpretation. It should be interpreted in a way that
would ensure equality rights. The failure to provide expressly for sign language interpretation in the Medical and Health Care Services Act
does not violate s.15(1) of the Charter. The Act does not list those services that are to be considered benefits; instead, it delegates the
power to make that determination to a subordinate authority. The fact that the Hospital Insurance Act does not expressly mandate the
provision of sign language interpretation does not render it constitutionally vulnerable. It does not forbid hospitals from exercising their
discretion in favour of providing sign language interpreters, although the Hospital Insurance Act must thus be read so as to require that
sign language interpretation be provided as part of the services offered by hospitals whenever necessary for effective communication.

While it is well established that the Charter applies to all the activities of government, whether or not those activities may be otherwise
characterized as private, the Court has recognized that the Charter may apply to non-governmental entities in certain circumstances. The
Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances,
while it is a private actor that actually implements the program, it is government that retains responsibility for it. Just as governments are
not permitted to escape Charter scrutiny by entering into commercial contracts or other private arrangements, they should not be allowed to
evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities. Two
important points must be made with respect to this principle. First, the mere fact that an entity performs what may loosely be termed a
public function, or the fact that a particular activity may be described as public in nature, will not be sufficient to bring it within the
purview of government for the purposes of s.32 of the Charter. In order for the Charter to apply to a private entity, it must be found to be
implementing a specific governmental policy or program. The second important point concerns the precise manner in which the Charter
may be held to apply to a private entity. The Charter may be found to apply to an entity on one of two bases. First, it may be determined
25
that the entity is itself government for the purposes of s.32. This involves an inquiry into whether the entity whose actions have given rise
to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be
characterized as government within the meaning of s.32(1). Second, an entity may be found to attract Charter scrutiny with respect to a
particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is
impugned but rather into the nature of the activity itself. If the act is truly governmental in nature, the entity performing it will be subject to
review under the Charter only in respect of that act, and not its other, private activities.

Hospitals carry out a specific governmental objective. The Act is not simply a mechanism to prevent hospitals from charging for their
services. Rather, it provides for the delivery of a comprehensive social program. The provision of these services is not simply a matter of
internal hospital management; it is an expression of government policy. Thus, while hospitals may be autonomous in their day-to-day
operations, they act as agents for the government in providing the specific medical services set out in the Act. The Legislature, upon
defining its objective as guaranteeing access to a range of medical services, cannot evade its obligations under s.15(1) of the Charter to
provide those services without discrimination by appointing hospitals to carry out that objective. Hospitals must conform to the Charter.
The failure to provide interpreter services for the deaf infringes s.15(1) and cannot be justified under s.1. The government should ensure
that sign language interpreters will be provided where necessary for effective communication in the delivery of medical services.

Analysis
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.
3) Charter will apply if:
a) It is a government actor as determined by the “routine and regular control” test, or
b) It is a non-governmental (private) entity implementing a specific government policy program or policy.
• The mere fact an entity performs a public function or the fact that an activity may be described as public in nature will not
be sufficient to bring it within the purview of ‘government’ for purpose of s.32. For the Charter to apply to a private entity, it
must be found to be implementing a specific government policy or program.

• Here, the Charter claimants are hearing impaired and are seeking medical services in BC that do not have sign language
interpretation. They claim a s.15 violation.
• Hospital Insurance Act: Government is required to reimburse hospitals for services. It does not pay for sign language
services. Neither does the Medical and Health Care Insurance Act.
• Standing as of right. There is actual or potential discrimination.
• Striking down the legislation v. a bad decision made by the government official. The legislation is not the source of the
violation. It is the discretion or actions of decision-makers. Because hospitals are engaged in carrying out government services,
policies and programs, for this purpose only, a hospital can be a government actor and thus the Charter will apply.
• The source of the Charter violation could be the legislation itself or the interpretation and application of the legislation by
those who have discretion under the legislation.
• If the source of the violation is the legislation itself then the Charter would clearly apply. Remedy for P could be sought
under s.52 (the court could strike down the legislation).
• If the source of the violation is the interpretation and application of the legislation then P could seek remedy under s. 24
(individual remedy).
• The source of the Charter violation here is the result of the interpretation and application of the legislation because the act
gives discretion to the hospital to decide what services it will provide for its patient.
• Discretionary powers should be exercised in a manner that is consistent with the Charter.
Does the Charter apply to the Medical Services Commission and the hospital? Are the Hospital and the Commission under the routine
and regular control of the government?
• Stoffman case says hospitals are not government actors. Although hospitals receive government funding they are not subject
to routine and regular control of the government. Therefore, hospitals are not government actors.
• Because the hospital is implementing government policy on medically required services the Charter does apply here. The
rational behind applying the Charter to these private entities is to ensure that the government does not avoid its responsibilities
under the Charter by delegating implementation to a private corporation. The Charter only applies to actions made by the hospital
involving the implementation of government policies and programs, not every action made by the hospital.
• Hospitals are a public institution, but they are not government entities because they have their own governing bodies.
• The Medical Services Commission is subject to the Charter; the commission is a government actor because it is part of the
fabric of government. The commission was created by statute and its members were appointed by the government.
26

Hill v. Church of Scientology of Toronto – 1995 SC

Facts:

On September 17th 1984, Morris Manning, accompanied by representatives of the Church held a press conference on the steps of Osgood
Hall in Toronto. Manning, who was wearing a barrister’s gown, read from and commented upon allegations contained in a notice of
motion by which the Scientology intended to commence criminal contempt proceedings against Hill, a Crown attorney. The notice alleged
that Hill had misled a SC judge and had breached orders sealing certain documents belonging to Scientology. The remedy sought was a
fine. At the contempt proceedings, the allegations against Hill were found to be untrue and without foundation. Hill then commenced this
action for damages in libel. At trial, Manning and the church were found jointly liable for general damages ($500,000) and the church was
found liable for aggravated and punitive damages ($1.3 Million). The CA dismissed the appeal.

Issue:

Whether the common law of defamation can be subject to Charter scrutiny? No.

Ratio: (Cory, J.)

A submits that by reason of his position as a government employee, Hill’s action for damages constitutes government action within the
meaning of s.32. There is no government action involved in this defamation suit. It now must be determined whether a change or
modification in the law of defamation is required to make it comply with the underlying values upon which the Charter is founded. In
Dolphin Delivery, it was found that the common law could be subjected to Charter scrutiny in the absence of government action under the
idea of s.52 of the constitution applying to all and any laws inconsistent with the Constitution. Where however, private parties rely on the
common law and where no act of government is relied upon to support the action, the Charter will not apply. On the other hand, in
Salituro, it was found that judges should adapt the common law to reflect the changing social, moral and economic fabric of the country
and where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should
scrutinize the rule closely. If it is possible to change the common law rule without upsetting the balance between legislative action, then
the rule ought to be changed. It is clear from Dolphin Delivery that the common aw must be interpreted in a manner which is consistent
with Charter principles.

When determining how the Charter applies to the common law, it is important to distinguish between those cases in which the
constitutionality of government action is challenged, and those in which there is no government action involved. It is important not to
import into private litigation the analysis which applies in cases involving government action. Private parties owe each other no
constitutional duties and cannot found their cause of action on a Charter right. The party challenging the common law cannot allege that
the common law violates a Charter right because Charter rights do not exist in the absence of state action. The most he can do is argue that
the common law is inconsistent with Charter values. When the common law is in conflict with Charter values, the traditional s.1
framework is not appropriate. The balancing must be more flexible and weighed against the principles which underlie the common law.
Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary. The party who
is alleging that the common law is inconsistent with the Charter should also bear the onus of proving that the common law fails to
comply with Charter values and that when these values are balanced the common law should be modified.

Freedom expression has never been recognised as an absolute right and defamatory statements are detrimental to the advancement of
values and harmful to the interests of a free and democratic society. The reputation of an individual must also be regarded. It is an attribute
that must, just as much as freedom of expression, be protected by society’s laws. In this case, consideration must be given to the particular
significance reputation has for a lawyer, as it is paramount to a lawyer’s practice, clients, other members of the profession and the
judiciary. In this respect, the common law of defamation is not inconsistent with the Charter as it complies with the Charter’s underlying
values.

In terms of qualified privilege, Manning’s actions far exceeded the legitimate purpose of the occasion. The circumstances of the case
called for great restraint in the communication of information concerning the proceedings launched against Hill. As an experienced lawyer,
Manning ought to have taken steps to confirm the allegations that were being made. He was duty bound to wait until the investigation was
completed before launching such a serious attack on Hill’s professional integrity. As a result, the permissible scope of his comments was
limited and the qualified privilege which attached to his remarks was defeated.

• Dolphin Delivery said the Charter did not apply directly to private actions where interest is governed by common law.
• Issue of qualified privilege: Applicable to printed documents only.
• Manning argued because Hell was a Crown Prosecutor, he is a government actor and the Charter should apply. The counter
argument (Hill) was that Hill as an individual was attacked separate from his position as a Crown Prosecutor or the government. In
fact, Hill claimed personal damages relating to his ability to act in a personal capacity.
• Court rejects government action argument. The issue is whether the common law on defamation can be subject to the Charter.
• Charter cannot be used as a sword to strike down the common law, but the common law must be balanced and in-line with the
Charter.
27

• Direct v. Indirect:
• S.1 formula for direct.
• Broad applicability for indirect (not s.1)
• Onus on claiming under the Charter applies directly on the party claiming the violation and then shifts to the government
regarding s.1. Indirectly, the onus is on the claimant entirely.
• The Charter will apply to common law as long as it is government action which infringes. The church argues that Hill was an
agent of the crown, was financially supported by the AG, and is thus government action. This is a purely private action, even though
Hill in his professional capacity is a government actor. A private action for defamation rooted in common law is not subject to CCRF.
The church impugned Hill’s personal characteristics, he initiated a private action. There is no evidence that he did this at the request of
the AG. The funding does not presuppose government action. Crown attorneys become liable once they exceed their statutory powers,
thus actions they take outside this scope is private. No government action. Employees of the government are not necessarily
government actors.
• In a situation where the Charter applies indirectly, how does the court deal with s.1?
• Because the government is not a party to the action is does not make sense that the government would have to defend the common
law as being a reasonable limit.
• It is open to develop the common law in a way that is in keeping with the Charter, but it is not a case where the court will engage
with s.1. S.1 only applies to executive actions of the government, not judge made common law. The onus is on the party seeking
to change the common law and the other party is entitled to rely on the common law as it currently stands.

Remedies

• Courts should choose a remedy that interferes as little as possible with the legislature.

S.24
• Charter claimants only (private litigants).
• Standing must be as of right.
• Injunctions, stays, damages, etc.
• S.24(2) applies to criminal proceedings and evidence.

S.52
• Public interest or private litigants.
• Where the issue is not related to legislation (maybe there is no legislation) but it is related to some entity or government action, a
remedy cannot come from s.52 because it applies to legislation only. A remedy must come from s.24 then.
• Striking down: Applies to the whole legislation. The whole Act is struck down and declared of no force or effect.
• Severance: Cuts out the impugned part or provision. The court must first consider whether the rest of the legislation can stand
without the provision. If not, severance is not an appropriate remedy.
• Reading In: Term or provision is added in cases of under-inclusiveness. This is generally used in benefit-conferring legislation
where the legislation gives some benefit but a particular group has been excluded.
• Reading Down: Interpreting the legislation so it doesn’t violate the Charter.
• Suspension (Temporary only): Gives the government time to amend the legislation before any of the above remedies.

Remedies Applied:
1. Determine the Extent of Inconsistency: Oakes Test Applied
• Is it a pressing or substantive objective?
• If yes, the provision is regarded narrowly to determine proportionality between the means and objective. Is there a rational
connection?
• If yes, the court must observe whether there is minimal impairment.
• Are the salutary and deleterious effects proportional to the legislation?
• If no, a remedy is needed.
2. Which remedy is most appropriate?
• Consider the intrusiveness/interference into the legislature.
• Can the issue be dealt with precisely? This is where reading in or severance would be most appropriate.
• Look at the budgetary concerns and how the remedy is going to change the legislation itself. Example: If it is too expensive to
extend benefits, the best option would be to strike down the legislation and throw it back to the legislature for re-writing.
3. Whether a suspension should be added to the remedy?
• Appropriate when an immediate action would cause some hardship or deprivation to both the government and individuals seeking
the remedy.
• Can’t simply be based on giving legislature them to fix the problem.
• Once a remedy has been granted under s.52, it is not likely a remedy under s.24 can also be found. To grant both would give the
s.52 remedy a retroactive effect, which the courts are against.
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The Canadian Charter of Rights and Freedoms: General Principles – KM Lysyk (1994)

S.24(1) may be invoked to obtain a remedy, other than exclusion of evidence, for infringement or denial of a Charter right or freedom. This
provision applies to governmental action, such as the conduct of public officials and the police. S.24(2) provides for exclusion of evidence
obtained in a manner which infringed or denied a Charter right or freedom if the admission of such evidence would bring the reputation of
justice into repute.

Laws inconsistent with the Charter: The Supremacy Clause

Where a law is capable of two interpretations, one of which is constitutional and the other is not, a court should choose the interpretation
which accords with constitutional requirements. It is presumed that the legislature intended to respect constitutional limitations on its
authority. In federalism, the doctrine of severance is engaged to determine whether an enactment found to be partially unconstitutional may
be salvaged when the portion violating of the Constitution is exercised. The real question is whether what remains is so inextricably bound
up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review
of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at
all. In Schacter, four remedies were identified to be available under the supremacy clause. Reference has been made on two of them:
Striking down the whole of the enactment or where severance is appropriate, part of the enactment. A third option is to find that the
impugned law is wholly or partially invalid but to suspend the declaration of invalidity. The purpose of suspending the declaration is to
provide the parent legislative body with an opportunity to enact remedial legislation to cure the defect. The fourth option is that or
“reading in.” When a law is inconsistent with the Charter by reason of an exclusion from that law, the court may read in what had been
omitted in order to remedy the constitutional defect. A possible fifth element relates to the doctrine of constitutional exemption. The
objective is to preserve legislation with a valid purpose by holding it inapplicable only in those circumstances in which its effects would
violate a Charter right or freedom. (See dissent in Rodriguez)

Remedies Under s.24(1)

An individual remedy under s.24(1) will rarely be available in conjunction with an action under s.52 of the Constitution. Ordinarily where
a provision is declared unconstitutional and immediately struck down pursuant to s.52, the matter will end. No retroactive s.24 remedy will
be available. It follows that where the declaration of invalidity is temporarily suspended, s.24 will not be available either. To allow for a
s.24 remedy during the period of suspension would be tantamount to giving the declaration of invalidity retroactive effect. Finally, if a
court takes the course of reading down or in, a s.24 remedy would probably only duplicate the relief flowing from the action that court has
already taken.

Exclusive Evidence Under s.24(2)

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights
or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the
admission or it in the proceedings would bring the administration of justice into disrepute. S.24(2) represents a compromise between the
common law rule that relevant evidence is generally admissible even if illegally obtained and the American rule that excludes evidence
obtained in violation of the Bill of Rights. The burden of persuasion is placed on the party seeking exclusion of the evidence to show, on
the balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute. It must first be
shown that the evidence was obtained in a manner that infringed or denied a Charter right or freedom and then must be established that its
admission would harm the justice system.

Rodriguez v. BC (AG) – 1993 SC

Facts:

A suffered from amyotrophic lateral sclerosis (ALS). As her illness progressed, she was expected to lose mobility and bodily functions and
be confined to a bed. Her life expectancy was between 2 and 14 months. A did not wish to die so long as she still had the capacity to enjoy
life, but wished that a qualified physician be allowed to set up a means by which she might, when she was no longer able to enjoy life, by
her own had, at the time of her choosing, end her life. A applied to the BS SC for an order that s.241(b) of the CC, which prohibits assisted
suicide, be declared invalid on the ground that it violated her right under s.7, 12 and 15(1) of the Charter and was to the extent it precludes
a terminally ill person from committing physician-assisted suicide, or no force and effect by virtue of s.52(1) of the Constitution. The BC
SC dismissed the application. She appealed to the SCC.

Issue:

Whether s.241(b) infringes s.7, 12 and 15? No.


29

Ratio: (Sopinka, J.)

Security of the person cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned
with the well-being of the living person. Sanctity of life has been understood historically as excluding freedom of choice in the self-
infliction of death and certainly in the involvement of others in carrying out that choice. Personal autonomy, at least with respect to the
right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are
encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. The
complaint is that the legislation is over-inclusive because it does not exclude from the reach of the prohibition those who are terminally ill,
mentally competent, but cannot commit suicide on their own. It is also argued that the extension of the prohibition is arbitrary and unfair as
suicide itself is not unlawful, and the common law allows a physician to withhold or withdraw life-saving or life-maintaining treatment on
the patient's instructions and to administer palliative care which has the effect of hastening death.

S.241(b) has as its purpose the protection of the vulnerable who might be induced in moments of weakness to commit suicide. This
purpose is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by
allowing life to be taken. This is part of the fundamental conception of the sanctity of human life. The principle of sanctity of life is no
longer seen to require that all human life be preserved at all costs. While Canada has great sympathy for the plight of those who wish to
end their lives so as to avoid significant suffering, it has been prepared to recognize that the active assistance of a third party in carrying
out this desire should be condoned, even for the terminally ill. The basis for this refusal is twofold; first, the active participation by one
individual in the death of another is intrinsically morally and legally wrong, and second, there is no certainty that abuses can be prevented
by anything less than a complete prohibition. Creating an exception for the terminally ill might therefore frustrate the purpose of the
legislation of protecting the vulnerable because adequate guidelines to control abuse are difficult or impossible to develop. The prohibition
occasioned by s.241(b) is not contrary to the provisions of the Charter.

Dissent: (Lamer, CJ)

S.241(b) violates the right to equality in s.15 of the Charter and cannot be saved by s.1. An appropriate remedy must be considered. This
provision has a discriminatory effect on persons who are or will become incapable of committing suicide themselves, even assuming that
all the usual means are available to them, because due to an irrelevant personal characteristic such persons are subject to limitations on
their ability to take fundamental decisions regarding their lives and persons that are not imposed on other members of Canada. S241(b)
cannot survive the minimal impairment component of the proportionality test. Therefore, the third component need not be regarded.

This is not an appropriate case for either reading down or reading in, as the extent of the inconsistence is the blanket nature of the
prohibition where no part of the provision can be read down or severed in order to render it unconstitutional. As for reading in, Shachter
indicates that reading in is not appropriate, given the range of alternative schemes from which the court would have to choose. The best
constitutional way to achieve the legitimate legislative objective, short of absolute prohibition, is not obvious. Reading in an assisted
suicide code to apply for an indefinite period following this decision would certainly not comport with Parliament’s decision to impose an
absolute prohibition, and would also raise serious concerns about the roles of the courts and legislatures.

The most common remedial order where a statutory provision is found to violate the Charter and reading down or in is inappropriate is a
declaration that the provision is of no force or effect. However, it is not advisable, as here, where the provision pursues an important
objective but is over-inclusive. Were the court to strike down the provision effective immediately, those whom the government could
protect constitutionally with a more tailored provision, and who indeed should be protected, would be left unprotected and would pose a
potential danger to the public. Parliament should have time to create remedial provisions.

(McLachlin, J.)

S.7 mandates that if the state limits what people do with their bodies, the state must do so in a way which does not violate the principles of
fundamental justice. Under the scheme Parliament has set up, the physically able person is legally allowed to end his or her life; he or she
cannot be criminally penalized for attempting or committing suicide. But the person who is physically unable to accomplish the act is not
similarly allowed to end her life. This is the effect of s.241(b), which criminalizes the act of assisting a person to commit suicide and which
may render the person who desires to commit suicide a conspirator to that crime.

It is argued that the denial to Rodriguez of the capacity to treat her body in a way available to the physically able is justified because to
permit assisted suicide will open the doors, if not the floodgates, to the killing of disabled persons who may not truly consent to death. The
fear that abuse may arise if an individual is permitted that which she is wrongly denied plays no part at this initial stage. It does not accord
with the principles of fundamental justice that Rodriguez be disallowed what is available to others merely because it is possible that other
people, at some other time, may suffer, not what she seeks, but an act of killing without true consent. It is also argued that Sue Rodriguez
must be denied the right to treat her body as others are permitted to do, because the state has an interest in absolutely forbidding anyone to
help end the life of another. Parliament has not exhibited a consistent intention to criminalize acts which cause the death of another.
Individuals are not subject to criminal penalty when their omissions cause the death of another. Criminal culpability depends on the
circumstances in which the death is brought about or assisted. The law has long recognized that if there is a valid justification for bringing
about someone's death, the person who does so will not be held criminally responsible. In the case of Rodriguez, there is arguably such a
30
justification; the justification of giving her the capacity to end her life which able-bodied people have, and the justification of her clear
consent and desire to end her life at a time when it makes no sense to continue living it. Certain of the interveners raise the concern that the
striking down of s.241(b) might demean the value of life. But what value is there in life without the choice to do what one wants with one's
life, one might counter. One's life includes one's death. Different people hold different views on life and on what devalues it. For some, the
choice to end one's life with dignity is infinitely preferable to the inevitable pain and diminishment of a long, slow decline. S.7 protects
that choice against arbitrary state action which would remove it.

The true objective of s.241(b) is the fear that if people are allowed to assist other people in committing suicide, the power will be abused in
a way that may lead to the killing of those who have not truly and of their free will consented to death. Viewed thus, the objective of the
prohibition is not to prohibit what it purports to prohibit, namely assistance in suicide, but to prohibit another crime, murder or other forms
of culpable homicide. The existing provisions in the CC go a considerable distance to meeting the concerns of lack of consent and
improperly obtained consent. A person who causes the death of an ill or handicapped person without that person's consent can be
prosecuted under the provisions for culpable homicide. The existence of a criminal penalty for those unable to establish this should be
sufficient to deter killings without consent or where consent is unclear. Counselling suicide would also remain a criminal offence under
s.241(a). The infringement of s.7 by s. 241(b) has not been shown to be demonstrably justified under s.1.

• Five members of the court found no violation while the other four did.

Sopinka (Majority)
• While there is a violation of security of the person, there is no violation of s.7. People should have freedom from state imposed
stress, personal autonomy without state intervention, etc. Security of the person does not include the right to take one’s life. It is
intrinsically and inherently morally wrong.
• S.24(b) deprives autonomy and could cause physical pain and stress, thus causing a violation.
• Important to look at state interests in determining whether state interests are arbitrary. A violation of s.7 includes a violation of
either life, liberty and security, as well as a principle of fundamental justice. (Two Stage Analysis) Some principles are vagueness,
arbitrariness, illusory defences, etc.
• Here, the law is consistent with state interest, so it is not arbitrary or violating of s.7. The objective is not arbitrary.

Lamer (Dissent)
• Inconsistency: Discriminate people without the ability to kill themselves. Suicide becomes illegal because they have to rely on
someone else whereas for other Canadians, suicide is legal.
• Purpose of the legislation was to prevent forced euthanasia, but it is not a blanked for all suicide. The rational connection is not
satisfied. There is an arbitrary distinction drawn between those who can and cannot committed suicide. Therefore, the legislation is
over-inclusive.
• Reading in or reading down are not appropriate remedies. If the state will allow assisted suicide they will likely want certain safeguards in place
which will require detailed description which is not the role of the court. You cannot be true to the intention of the legislature while reading in an
assisted suicide exemption.
• Striking down is the best remedy, but a suspension is necessary because allowing suicide for all, people may be at risk of forced
euthanasia, which the government wants to prevent.
• Constitutional exemption (s.24) could be appropriate for Rodriguez, which exempts her from the suspension so she could have
immediate relief. Section 24 remedies are only available to people who have their rights violated. It is not open to public interest
groups, even if they have standing.

McLachin (Dissent)
• The law is arbitrary in that able bodied people who take their lives are not open to criminal sanctions. Disabled people have to
rely on someone else.

Reading Down – The Presumption of Constitutionality

The doctrine of the presumption of constitutionality as part of a court’s responsibilities to hear cases concerning the division of powers has
three separate braches: 1) a canon of construction, 2) a presumption of regularity, and 3) a true evidentiary presumption of fact. There is a
presumptia juris as to the existence of the bona fide intention of a legislative body to confine itself to its own sphere and a presumption of
similar nature that general words in a statue are not intended to extend its operation beyond the territorial authority of the Legislature.

The presumption of regularity precedes from the Latin maxim omnia praesumuntur rite esse acta or all things are presumed to have been
done rightly. In Charter cases, the presumption of regularity accords with the general principle that he who alleges violation of a Charter
right has the onus to prove facts in support of that claim. Although the onus language is now more familiar to Charter jurisprudence, in the
sense that attacking counsel must prove facts to demonstrate the Charter breach, there may be situations where the homely pre-Charter
maxim :all things are presumed to have been done rightly” will be more appropriate.
31

In federalism cases, Canadian courts have been prepared to presume to some degree that all constitutional facts necessary to support a
challenge exercise of power exist, to presume that certain legislative declared facts are true, or even to lighten the standard of proof
required for certain constitutional facts. Courts sitting under the Charter have yet to make significant use of the evidentiary presumption of
fact branch of the doctrine. Parliament will declare facts in order to buttress the Government’s attempt to justify its legislation when faced
with the inevitable Charter challenge. Out of respect for a coordinate branch of government, the courts will certainly be tempted to accord
Parliament’s declaration of fact some weight, as was previously done in federalism cases. Nevertheless, since many Charter cases are
almost wholly fact dependant, especially as concerns the s.1 justification, it is hard to see how legislative declarations of fact could
significantly influence the courts in such circumstances. Facts exist to justify the legislation.

Schachter v. Canada – 1992 SC

Facts:

Schachter applied for paternity benefits under s.32 of the UI (EI) Act. It provided for 15 weeks of parental benefits for adoptive parents but
not or natural parents. Schachter was a natural parent and his application was denied. The lower court found a violation of s.15 of the
Charter because s.32 discriminated between natural and adoptive parents wanting to take parental leave.

Issue:

Whether s.32 violates s.15 of the Charter? Yes. In respect to s.52, does the violation require the impugned legislation be declared of no
force or effect? No. Can the issue be resolved with a s.24 remedy? No.

Ratio: (Lamer, CJ)

Severance or reading down is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. When only
part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no
force or effect and thus, severed from the rest of the act. However, there are some cases in which to sever the offending portion would
actually be more intrusive to the legislative purpose than the alternate course of striking down provisions which are not themselves
offensive but which are closely connected with those that are. In the test for severance, the real question is whether what remains is so
inextricably bound up with the part declared invalid that what remains cannot independently survive or whether on a fair review of the
whole matter it can be assume that the legislature would have enacted what survives without enacting the part that is ultra vires at all. This
test rests on the assumption that the legislature would have passed the sound part without the unsound part. In certain cases where this
cannot be assumed, it will be necessary to go further and declare inoperative portions of the legislation which are not in themselves
unsound. Courts must declare inoperative a) the inconsistent portion, and then b) such part of the remainder of which it cannot be safely
assume that the legislature would have enacted it without the inconsistent portion.

In the usual case of severance the inconsistency is defined as something improperly included in the statue which can be severed and stuck
down. In the case of reading in, the inconsistency is defined as what the statue wrongly excludes rather than what it wrongly includes. The
logical result of declaring inoperative that inconsistency may be to include the excluded group within the statutory scheme. Reading in is
as an important tool as severance in avoiding undue intrusion into the legislative sphere. However, reading in will not always constitute the
lesser intrusion. In some cases, it will not be a safe assumption that the legislature would have enacted the permissible part of the act
without the impermissible part. In the case of severance, the inconsistent part of the statutory provision can be defined with some precision
in the basis of the requirements of the Constitution. This is not always the case for reading in. In some cases, the question of how the
statute ought to be extended to comply with the Constitution cannot be answered. The courts should not read in where there is no manner
of extension which flows with sufficient precision from the requirements of the Constitution.

The first step in choosing a remedial course under s.52 is defining the extent of the inconsistency which must be stuck down. Under
the rational connection test, where the purpose of the legislation or legislative provision is deemed to be pressing and substantial, but the
means used to achieve this objective are found not to be rationally connected to it, the inconsistency to be struck down will generally be
the whole of the portion of the legislation which fails this test. Under the minimal impairment/effects test, where the second and/or third
elements of the proportionality rest are not met, there is more flexibility in defining the extent of the inconsistency. For example, if the
legislative provision fails because it is not carefully tailored to be a minimal intrusion or because it has effects disproportionate to its
purpose, the inconsistency could be defined as being the provisions left out of the legislation which would carefully tailor it, or would
avoid a disproportionate effect. Such an inconsistency could be declared inoperative with the result that the state was extended by way of
reading in.

Having determined what the extent of the inconsistency is, the next question is whether that inconsistency may be dealt with by
way of severance or reading in, or whether an impugned provision must be struck down in its entirety. In determining whether
reading in is appropriate, the question is not whether the courts can make decisions that impact budgetary policy, as either reading in or
severance could require the spending of money, but it is to what degree they can appropriately do so. A remedy which entails an intrusion
into this sphere so substantial as to change the nature of the legislative scheme in question is clearly inappropriate. Another way of asking
32

whether to read in or sever would be an illegitimate intrusion into the legislative sphere is to ask whether the significance of the part which
would remain is substantially changed when the offending part is exercised. The problem with striking down only the inconsistent part is
that the significance of the remaining portion changes so markedly without the inconsistent portion that the assumption that the legislature
would have enacted it is unsafe. In cases where the issue is whether to extend benefits to a group not included in the statutes, the question
of the change in significance of the remaining portion sometimes focuses on the relative size of two groups.

Where s.52 is not engaged, a remedy under s.24(1) of the Charter may be available. This will be the case where the statute or provision is
not in and of itself unconstitutional, but some action taken under it infringes a person’s Charter rights. S.24(1) would provide for an
individual remedy for the person whose rights have been infringed.

In this case, the right which was determined to be violated is a positive right; the right to equal benefit before the law. Reading in is
normally used in these cases, as striking down would deprive eligible persons of a benefit without providing any relief to the respondent
and would be absurd. Temporarily suspending the declaration of invalidity will give Parliament time to amend the legislation in a way
which meets its constitutional obligations. That is not to say that s.52 does not provide the flexibility to stop short of striking out an
unconstitutional provision in its entirety. A s.24 remedy for damages is not applicable to this case. The classic doctrine for damages is that
P is to be put in the position he or she would have occupied had there been no wrong. Here, there are two possible positions. P could have
received the benefit equally or there could have been no benefit at all. The remedial choice under s.24 thus rests on an assumption about
which position P would have been in. It has already been determine which assumption should be made under s.52 and have determined
that it cannot be assume that the legislature would have enacted the benefit to include P. P is in no worse a position now than had there
been no wrong.

• Violation under s.15 in the area of benefits and parental leave. Government could not justify, so the question was what was
the appropriate remedy.
• In a case of positive rights (generally where benefit are concerned) reading in is usually the remedy. But budgetary
considerations are a problem. After the federal CA appeal came down, benefit were extended to natural parents, but all benefits
were cut to 10 weeks. This showed budget constraints.
• The appropriate remedy was to strike down and suspend to allow parliament to amend the act, but because the legislation was
already amended, there was no need.

The extent of the inconsistency should be defined:


1. Broadly where the legislation in question fails the first branch of the Oakes test in that its purpose is held not to be
sufficiently pressing or substantial to justify infringing a Charter right or if the purpose is itself held to be unconstitutional.
2. More narrowly where the purpose is held to be sufficiently pressing and substantial, but the legislation fails the first
element of the Oakes test in that the means used to achieve that purpose are held not to be rationally connected to it.
3. Flexibly where the legislation fails the second or third element of Oakes.

Severance or reading in will be warranted only in the clearest of cases; where each of the following criteria are met:
1. The legislative objective is obvious or it is revealed through the evidence pursuant to the failed s.1 argument, and severance
or reading in would further that objective or constitute a lesser interference with that objective than would striking down,
2. The choice of means used by the legislature to further that objective is not so unequivocal that severance or reading in would
constitute an unacceptable intrusion into the legislative domain, and
3. Severance or reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change the
nature of the legislative scheme in question.

• Temporarily suspending the declaration of invalidity to give the legislature an opportunity to bring the impugned
legislation or provision into line with its constitutional obligations will be warranted even where striking down has been deemed
the most appropriate option on the basis of one of the above criteria if:
1. Striking down the legislation without enacting something in its place would pose a danger to the public,
2. Striking down the legislation without enacting something in its place would threaten the rule of law, or
3. The legislation was deemed unconstitutional because of under inclusiveness rather than over breadth and therefore, striking
down would result in the deprivation of benefits from deserving persons without benefiting the individual whose rights were
violated.

Corbiere v. Canada – 1992 SC

Facts:

S.77(1) of the Indian Act established requirements for persons to be eligible to vote in elections for non-Indian band councils, including
that the resident be ordinarily a resident of the reserve. Non-resident members of the Batchewana band sought a declaration that the
provisions violated s.15(1) of the Charter. The trial judge ruled that it infringed s.15(1) and could not be justified under s.1. The federal CA
agreed but granted a different constitutional remedy. The trial judge declared s.77(1) invalid in its entirety and suspended the declaration
33
for a period of 10 months for the Batchewana Banda alone. The CA did not suspend the invalidity of s.77(1) but granted the band a
permanent constitutional exemption from the “ordinarily resident on the reserve” provision.

Issue:

Whether the appropriate remedy is a constitutional exemption or one that applies in general? A s.52 remedy is best, specifically a
suspension.

Ratio: (L’Heureux-Dube, J.)

In principle, there is no reason that a remedy should be confined to the circumstances of the Batchewana band, as the finding of invalidity
relates to the legislation in general as it applies to all bands. The constitutional exemption may apply when it has but been proven that
legislation is unconstitutional in general, but that is unconstitutional in its application to a small subsection of those to whom the legislation
applies. This is not the case. If certain bands can demonstrate an Aboriginal or treat right to restrict non-residents from voting, this in now
way affects the constitutionality of the impugned section. It is the order in council made pursuant to s.74(1), bringing the band within the
application of the act’s electoral rules, which would have to be challenged under such a claim. Nor would such a remedy be the order most
respectful of the equality rights of off-reserve members. If a constitutional exemption were granted, this would place a heavy burden on
off-reserve members, since it would require those in each band to take legal action to put forward their claim. Further, if equality rights had
to be determined on a band-by-band basis, it would make it that much harder to uphold Aboriginal equality rights in general. The
appropriate remedy is one that applies under s.52 and not one confined to the Batchewana.

Reading in would be inappropriate because non-residents would be voters for certain purposes but not others. With consideration of
both Parliament and interests, views and effects, the appropriate remedy is a declaration that the words “and is ordinarily resident on the
reserve” in s.77 are invalid and that the effect of this declaration of invalidity be suspended for 18 months. This time will allow Parliament
to consult and respond to the needs of different groups affected as well as modify s.77(2) at the same time, which contains the same
residency requirement for bands whose councillors are elected in electoral sections. Severing the offending words from the rest of the
statue will ensure that, should Parliament chose not to act, all non-residents will be included as voters, but the nature of the and
governance and the requirements for voting will otherwise remain the same.

Immediate relief cannot be granted in this case. If an exemption from the suspension is given, the band will have to adapt to the inclusion
of all non-residents as voters within the existing scheme in the short term. This will require some administrative adjustment. If Parliament
then decides to amend the legislation, the band and its members will be required to adapt to a third voting system in a short period of time.
This would be inappropriate and inconsistent with the principles underlying constitutional remedies.

• S.77 of the Indian Act restricted voting rights of persons not on a reserve (band voting). The trial judge struck down and
suspended the legislation. The CAA granded a s.24 exemption for non-resident members of the Batchewana Band.
• SC found the remedy from the CA was too narrow, as it applied to bands across the country.
• The provision was declared invalid and severed. A suspension would also give to allow Parliament to amend legislation. It would
also allow the band to only have to change their voting processes once if Parliament did chose to amend the legislation.
• Can’t sever the entire section because this would give off reserve people the right to vote which would cause administrative
problems. The court wanted to give the legislature time to consider issues. By granting a suspension and the legislature doesn’t make
the changes then the band members will have the right to vote. Court wasn’t sure what the legislature would want to do with the
legislation; consultation with groups is required. Therefore the proper remedy is severance but coupled with a suspension to allow the
government time to consult with groups.
• Should the band receive a constitutional exemption under s.24? Or should they have to wait the 18 month period for new
legislation to be enacted? If we give an immediate remedy then the band will have to prepare to allow these members to vote and if the
legislature adopts a different scheme the band would have to adapt to a new administrative scheme which is too much of a burden on
the band. In this case, there will be an eventual remedy, it is reasonable to ask the members to wait the 18 months to see what the
legislature would do and the members will be able to vote at some time in the future.
• Two kinds of constitutional exemption:
1. Broad exemption: An exemption from the legislation itself. Can assume that the law remains generally valid but that the law
has an adverse impact on them and they should therefore be exempted from the application of that section of the act.
2. Narrow exemption: Exemption from suspension.

• Case on analogous grounds.


• Discrimination between resident and non-resident status Aboriginals in how or if they can vote in band elections.
• How does an analogous ground arise?
1. First look at enumerated grounds. Enumerated grounds have a particular character to them, that act as markers to
discrimination on the basis of personal characteristics, either unchangeable or only changeable at great personal cost.
2. Next look at the distinction and determine whether there is differential treatment. Analogous grounds are generally based
on a personal characteristic that is immutable and that has little relevance to the purpose of the legislation. Here, moving onto a
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reserve would be too great a burden for people to gain the right to vote and should not be expected of the government.
(Constructively immutable)
3. Must be done before the contextual analysis. Once an analogous ground is found, it is always analogous and will not be
dependent on the context of each case.
• The ground here is Aboriginal residency or the precise status of not being a resident. This is an analogous ground because there
would be great, impractical costs to gaining the vote by moving. These members have the right to live where they want and should not
be forced into making this change. In some case, due to region, this may even be impractical.
• This is an embedded analogous ground.
• Not all residences will be protected under s.15. This case is exceptional. Example: Legislation that affects personal property
rights.
• L’Heureux-Dube: Need to look at context as a whole and take into consideration the ideas surrounding a proposed analogous
ground. Also, some other factors that should be recognised when considering an analogous ground are importance of sense of identity
and personal belonging, whether those disadvantaged lack in political power, whether the ground is recognised in human rights
legislation, etc.

M v. H – 1999 SC

Facts:

M and H were a cohabiting same-sex couple. Upon dissolution of the relationship, M applied for support under s.29 of the Family Law
Act. The support was denied since the definition of spouse in s.29 did not include same-sex couples. The CA ruled that s.29 offended s.15
of the Charter. As a remedy, the CA read out the words “a man and a woman” from the definition and replaced them with the words “two
persons.” The application of the order was suspended for one year, to give the Ontario legislature time to act. Although M and H settled
their differences, the AG was given permission to appeal.

Issue:

Whether the definition of spouse in s.29 of the Act infringes s.15(1) of the Charter? Yes. If so, can it be saved by s.1? No. If not, what is
the appropriate remedy? Severance.

Ratio: (Cory and Iacobucci, J.)

The s.15(1) equality guarantee is to be interpreted and applied in a purposive and contextual manner, in order to permit the realization of
the provision’s strong remedial purpose, and to avoid the pitfalls of a formalistic or mechanical approach. The first broad inquiry in the
s.15(1) analysis determines whether there is differential treatment imposed by the impugned legislation between the claimant and others.
The type of benefit salient to the s.15(1) analysis cannot encompass only the conferral of an economic benefit. It must also include access
to a process that could confer an economic or other benefit.

The definition of spouse draws a distinction between individuals in conjugal, opposite-sex relationships of a specific degree of duration
and individuals in conjugal, same-sex relationships of a specific degree of duration. Individuals in same sex relationships are denied access
to the system of support provided by the Act. This differential treatment discriminates in a substantive sense by violating the human
dignity of individuals in same-sex relationships. First, individuals in same-sex relationships face significant pre-existing disadvantage and
vulnerability, which is exacerbated by the impugned legislation. Second, the legislation at issue fails to take into account the claimant’s
actual situation. Third, there is no compelling argument that the ameliorative purpose of the legislation does anything to lessen the charge
of discrimination in this case. Fourth, the nature of the interest affected is fundamental, namely the ability to meet basic financial needs
following the breakdown of a relationship characterized by intimacy and economic dependence. The exclusion of same-sex partners from
the spousal support scheme implies that they are incapable of forming intimate relationships of economic interdependence, without regard
to their actual circumstances.

This infringement is not justified under s.1 because there is no rational connection between the objectives and the means. The objective is
to provide for the equitable resolution of economic disputes when relationships between financially interdependent individuals
break down, and alleviate the burden on the public purse. It defies logic to suggest that a gender-neutral support system is rationally
connected to the goal of improving the economic circumstances of heterosexual women upon relationship breakdown. In addition, there is
no evidence to demonstrate that the exclusion of same-sex couples from the spousal support regime of the Act furthers the objective. The
remedy of reading in is inappropriate, as it would unduly recast the legislation, and striking down the Act as a whole is excessive. The first
step in selecting the appropriate remedial course is to determine the extent of the inconsistency between the impugned legislation and the
Charter. Here, the inconsistency emanates from the under-inclusive definition of spouse. This violates equality rights in s.15 and cannot
survive any of the stages of review comprised in the s.1 analysis.

In determining whether reading in or reading down is more appropriate than either striking down or severance, the Court must consider
how precisely the remedy can be stated, budgetary implications, the effect the remedy would have on the remaining portion of the
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legislation, the significance or long-standing nature of the remaining portion, and the extend to which a remedy would interfere with
legislative objectives. As to the first of these criteria, reading in is only available where the court can direct with a sufficient degree of
precision what is to be read in to comply with the Constitution. Here, the defect in “spouse” can be traced to the phrase “a man and a
woman” which excludes same-sex couples. There is remedial precision in so far as reading down this phrase and reading in the words “two
persons” will remedy the constitutional wrong, but it is not certain that reading in will ensure the validity of the legislation. The reading in
at s.29 would have no effect on other provisions of the act, such as opting out of the default system of support rights. It would essentially
remedy one wrong only to create another and thereby fail to ensure the validity of the legislation.

Where reading in is inappropriate, the courts can either strike down the legislation in its entirety or sever only the offending portions. Here,
striking down the whole act would be excessive as only the definition of spouse has been found to violate the Charter. This is also not a
case where the parts of the legislative scheme which do not offend the Charter are so inextricably bound up with the non-offending
portions that what remains cannot independently survive. Severing s.29 such that it alone is declared of no force of effect is the most
appropriate remedy in the present case and should be suspended for six months. The legislature may need time to reconcile this Act, as
well as other acts where the same concern regarding the definition of spouse arises. The appropriate remedy is to declare s.29 of no force
and effect and to suspend the application of the declaration for a period of six months.

• Claim for spousal support. Spouse only included hetero sexual couples. The court found this to be a violation of s.15, which could
not be justified under s.1.
• Inconsistency is from under-inclusiveness.
• Reading out of spouse and reading in of ‘two persons’ was found to be inappropriate. The problem was precise to allow reading
in, but this remedy would create problems in other parts of the act, particularly the opting out portions.
• Severing s.29 or striking down the provision was found to be the best remedy. Suspension was given so Parliament can fix other
legislation that faces the same problem, the definition of spouse.

• S.15 analysis is started by reiterating the test from Law.


• Comparator Group: Persons in opposite sex relationships with some permanence. It is the person, not the couple that is
compared to another person in a relationship. Members of opposite sex couples are entitled to apply for spousal support whereas
members from same sex couples are not.
• Focus on claimant’s situation, unlike Law.
• Nature of the Interest Affected: Complete denial for the possibility for spousal support. Court also discusses symbolic impact
that the exclusion has. The legislation seems to put forward a suggestion that members of same sex relationships are unworthy of
support.
• In Law, the court was reluctant to extend a public benefit system. This case deals with private benefits that are received from an
ex-partner. There is no burden on the government if this benefit is extended.
• Context does not equate judicial deference. This should be addressed in the section 1 analysis, either in the rational connection or
minimal impairment stage.
• Oakes Test:
• Under-inclusive legislation: When legislation is under-inclusive, a contextual analysis should be used first. What is the objective
of the legislation as a whole, as well as what is the objective of the impugned provision? This is important in respect to the
omission. An omission my have a different purpose or objective than the actual legislation.
• Objective: To provide an equitable resolution to economic disputes arising from a break down of a relationship and to alleviate
the burden on the public purse. This is a pressing and substantial concern.
o Section 29: Is this section primarily concerned with women with children or women with a disability? Court says no.
o Objective of the Omission: Addressing power imbalances between men and women. Court says no.
• Rational Connection: Is the objective met by excluding members of a same sex relationship? No. The legislation is gender
neutral, children neutral. Even if the objective is to protect children, there is still no rational connection because members of same
sex couples might have children and are still not protected by the act. Their exclusion is not rationally connected.
• Minimal Impairment: Other benefits of support may be open to same sex couples, but that doesn’t negate the discrimination.
These benefits are much harder to get and can be less advantageous. This is not a case where the court should defer to the
legislature, as there is no need to balance competing interests. There is no one who will be disadvantaged by allowing this claim.
• Interesting note: Not all members of the same sex community agree that unanimity is wanted. In particular, H is not inclined to be
included in the definition of spouse. But the court recognises that charter claims would be difficult to bring forward if all of these
interests were always regarded.

Charter Rights and Reasonable Limitations


Reasonable Limitations

Elements of S. 1
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1) Prescribed by Law: Is the violation of the Charter prescribed by law? If not, it cannot be upheld under s.1
• Test: Whether the government action provides an intelligible standard for the judiciary to work with, or whether it is so vague
that it is impossible to comply.
• Where there is no intelligible standard, and where the legislature has given a plenary discretion, there can be no limit prescribed
by law.
• In assessing whether there is an intelligible standard, the Courts will give consideration to the manner in which the provision has
been judicially interpreted. If the judicial interpretation of an otherwise uncertain term provides an intelligible standard, the threshold
test for s.1 is met.
2) Reasonable Limit: Is the violation a reasonable limit? The party seeking to uphold the violation must establish that the infringing
act or legislation seeks to address a pressing and substantial concern, and that the means used are proportionate to this goal
3) Free & Democratic Society: Can the limit be demonstrably justified in a free & democratic society? The words free and democratic
society underlie the very purpose of the Charter and embody various fundamental beliefs and principles.
• Values and principles essential to a free and democratic society:
a) Respect for the inherent dignity of the human person
b) Commitment to social justice & equality
c) Accommodation of a wide variety of beliefs
d) Respect for cultural & group identity
e) Faith in social and political institutions that enhance the participation of individuals and groups in society

Justifying a Limit
• Burden of proof: The onus of proving that a limit on a right or freedom is reasonable and demonstrably justified in a free &
democratic society rests upon the party seeking to uphold the limitation
• Standard of proof : The standard is on a balance of probabilities not beyond a reasonable doubt, however, demonstrably
justified does still require a rigorous application of the test.

Contextual Factors to Consider:


• Vulnerability of the group that the legislator seeks to protect.
• That group’s own subjective fears and apprehension of harm.
• The inability to measure scientifically a particular harm in question, or the efficaciousness of a remedy.
• The nature of the activity that is infringed.

Oakes Test
1. Whether the government has a pressing and substantive objective in passing the legislation?
2. Proportionality between the objective and means of fulfilling the objective.
1. Is there a rational connection between the objective and means?
2. Is there minimal impairment in context of the Charter?
3. Proportionality between salutary and deleterious effects of the legislation.
• If the legislation cannot be justified, the courts turn to remedies.

R v. Oakes – 1986 SC

Facts:

S.8 of the Narcotic Control Act provided that if the Court finds the accused in possession of a narcotic, he is presumed to be in possession
for the purpose of trafficking. Unless the accused can establish the contrary, he must be convicted of trafficking. The CA Ontario held that
this provision constituted a reverse onus clause and was unconstitutional because it violated one of the core values of the criminal justice
system, the presumption of innocence entrenched in s.11(d) of the Charter. The Crown appealed.

Issue:

Whether the CA was correct in holding that s.8 of the Act violated the Charter and was of no force or effect? Yes. S.8 imposes a limit on
the right guaranteed by s.11(d) which is not reasonable and not demonstrably justified under s.1.

Ratio: (Dickson, CJ)

- S.1 has two functions


• it constitutionally guarantees the rights and freedoms set out in the provisions which follow
• states explicitly the exclusive justificatory criteria against which limitations on those rights and freedoms must
be measured.
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• any s.1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights
and freedoms
• the presumption is that the rights and freedoms are guaranteed unless the party invoking s.1 can bring itself
within the exceptional criteria which justify their being limited
- To establish that a limit is reasonable and demonstrably justified:
o objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be of
sufficient importance to warrant overriding a constitutionally protected right and freedom
 standard must be high in order to ensure that objectives which are trivial or discordant do not gain s.1 protection
 it is necessary that an objective relate to concerns which are pressing and substantial in a free and democratic
society before it can be characterized as sufficiently important.
- party invoking s.1 must show that the means chosen are reasonable and demonstrably justified.
- This involves a form of proportionality test. In each case courts will be required to balance the interests of society with those
of individuals and groups.
- Proportionality Test
• First, the measures adopted must be carefully designed to achieve the objective in question
• must not be arbitrary, unfair or based on irrational considerations and they must be rationally connected to the
objective.
• Second, the means, even if rationally connected to the objective in this first sense, should impair as little as
possible the right or freedom in question.
• Third, there must be a proportionality between the 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.
• Even if an objective is of sufficient importance, and the first two elements of the proportionality test are
satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals
or groups, the measure will not be justified by the purposes it is intended to serve.
• The more severe the deleterious effects of a measure, the more important the objective must be if the measure
is to be reasonable and demonstrably justified in a free and democratic society.

Application
- objective of protecting our society from the grave ills associated with drug trafficking is one of sufficient importance to warrant
overriding a constitutionally protected right or freedom in certain cases
- Moreover, the degree of seriousness of drug trafficking makes its acknowledgment as a sufficiently important objective for the purposes
of s.1, to a large extent, self-evident
- next stage, the means must be reasonable and demonstrably justified in a free and democratic society. Is the reverse onus in s.8 rationally
related to the objective of curbing drug trafficking?
- At a minimum, this requires that s.8 be internally rational; there must be a rational connection between the basic fact of possession and
the presumed fact of possession for the purpose of trafficking.
- Otherwise, the reverse onus clause could give rise to unjustified and erroneous convictions for drug trafficking of persons guilty only of
possession of narcotics. S.8 does not survive this rational connection test. Possession of a small or negligible quantity of narcotics does not
support the inference of trafficking and it would be irrational to infer that a person had an intent to traffic on the basis of his or her
possession of a very small quantity of narcotics. The presumption required under s.8 of is over-inclusive and could lead to results in certain
cases which would defy both rationality and fairness. Having concluded that s. 8 does not satisfy this first component of proportionality, it
is unnecessary to consider the other two components.

• Persons caught with narcotics were presumed to have them for trafficking. It was argued that this presumption interfered
with s.11(d) and the right to be presumed innocent.
• Fundamental Values: Inherent dignity, social justice, faith in institutions, etc. The government may be justified in
overriding rights when promoting values in a free and democratic society.
• Burden on the government to prove violation is justified. This is not the criminal standard of beyond a reasonable doubt, but
a civil standard, on a balance of probabilities.

Oakes Test
• Is the objective or purpose of the legislation pressing and substantial?
• This must be a sufficiently important objective to warrant overriding a protected Charter right or freedom. The standard is
high so that trivial or constitutionally discordant objectives do not gain s.1 protection.
• Here, the purpose of the legislation is to facilitate the conviction of those engaged in trafficking of drugs. This is a pressing
and substantial concern as the goal is to deter people from trafficking drugs. The court looked at evidence such as increase in drug
trafficking, international efforts of such; parliament led evidence indicating that drug trafficking is a problem in Canada and in other
countries. Court finds there is a pressing and substantial concern.
• Proportionality
• Is the impugned provision rationally connected to the objective?
• The party seeking s.1 protection must show that the objective is reasonable and demonstrably justified: balancing
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interests of society against the interests of individuals or groups.


• The means must be carefully designed to achieve the objective. Not arbitrary, unfair or irrational.
• Here, the provision is not rational in relation to a small quantity of narcotics, only a rational assumption when
there is a large quantity. It is not logical to assume a person will traffic a small amount. The problem is that the law is
not internally rational, so the law fails. The law can’t be justified under s.1 and the court doesn’t need to consider the
rest of the test.
• Dose it minimally impair the right or freedom?
• The objective must impair as little as possible the right or freedom in question.
• Is there proportionality between the effects and the legislation?
• Cost benefits analysis: The more severe the deleterious effects of the measure, the more important the legislative
objective must be.
• The effects that are being talked about are the violation on the individual’s rights.
• Remedy: S.8 severed from the ct. Parliament created a presumption that applied to large quantities only. Now the NCA is
gone.
• SC agreed the reverse onus provision violated the presumption of innocence, even though the standard of proof was on a
balance of probabilities. If an accused adduced sufficient evidence to raise a reasonable doubt as to innocence but did not prove
on a balance of probabilities that the presumed fact was untrue, the accused could be convicted despite the existence of a
reasonable doubt.
• SC observed that the onus of proving a reasonable and demonstrably justified limit under s.1 was on the party seeking to
uphold the limit. The standard of proof was the civil standard, as the criminal standard was unduly onerous in the context of the
words used s.1. It was necessary to show that the objective of the limitation was of sufficient importance to warrant overriding a
constitutionally protected right or freedom. Once that was established, it was necessary to invoke a "proportionality test" to
show that the means chosen were reasonable.
• The court must be guided by the values associated with a free and democratic society: 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 and
group identify, and faith in social and political institutions which enhance the participation of individuals and groups in society.
• The proportionality test involved three components. First, the measures adopted to achieve the limitation had to be
carefully designed so as to be rationally connected to the objective. Second, the measures had to impair as little as possible the
right or freedom in question. Third, there had to be a proportionality between the effects of the measures and the objective
identified as being of sufficient importance to override the constitutional right or freedom.
• S.8 of the Narcotic Control Act was aimed at curbing drug trafficking. That objective was viewed as being of sufficient
importance to warrant overriding a constitutionally protected right or freedom. However, the mere fact of possession of a small
quantity of narcotics did not support the inference that the accused intended to engage in trafficking. Therefore, there was no
rational connection between the measures and the objective. S.8 did not meet the first part of the proportionality test and as such
could not be justified under s.1. The appeal was dismissed.
• Dickson: The standard of justification in a given case should be a single standard, it should be strict and rigorous. The
constituent elements of reasonable s.1 justification requires cogent evidence of justification. The onus of justification is on the
party seeking to limit the right or freedom. A Court will need to know alternative measures for implementing the objective.
Certain cases some of the constituent elements of the s. 1 analysis may be self-evident. The standard of proof under s. 1 is civil-
balance of probabilities. The test is:
• Court couldn’t read in a remedy because it is more appropriate for the legislature to determine e what amounts of drugs
would or should be covered.
• There are two distinct instances where the court may or may not strictly apply the Oakes test. The distinction is between:
1. Where the state is acting as the singular antagonist; and
2. Where the state is acting as a mediator or seeking to protect the vulnerable.
• In the first instance the court has said it is appropriate for the courts to strictly apply the Oakes criteria. In the
second instance the court will show deference to parliament and the notion of reasonableness comes into play; does it impair the
right as little as is reasonably possible?

RJR-MacDonald Inc v. Canada (AG) – 1986 SC

Facts:

The Tobacco Products Control Act broadly prohibited all advertising and promotion of tobacco products and the sale of a tobacco product
unless its package includes prescribed un-attributed health warnings and a list of toxic constituents. The legislative scheme targeted three
distinct categories of commercial activity: advertising, promotion and labelling. The Act, except for a prohibition on the distribution of free
samples of tobacco products, did not proscribe the sale, distribution or use of tobacco products. A sought a declaration that the Act was
wholly ultra vires and invalid as an unjustified infringement of freedom of expression guaranteed by s.2(b) of the Charter. The Quebec
Superior Court declared the whole of the Act ultra vires and found it to be of no force or effect as an unjustified infringement of s.2(b). The
Quebec Court of Appeal reversed the judgment.
39

Issue:

Whether the Act infringes s.2(b)? Yes. Can it be justified under s.1? No.

Ratio: (McLachlin)

The prohibition constitutes a violation of the right to free expression. However s.9 which requires tobacco manufacturers to place an un-
attributed health warning on tobacco packages, also infringes the right of free expression. The combination of the un-attributed health
warnings and the prohibition against displaying any other information which would allow tobacco manufacturers to express their own
views, constitutes an infringement of the right to free expression guaranteed by s.2(b). These infringements cannot be justified under s.1. If
the objective of a law which limits constitutional rights lacks sufficient importance, the infringement cannot be reasonable or justified. If
the good which may be achieved by the law pales beside the seriousness of the infringement of rights which it works, that law cannot be
considered reasonable or justified. While context, deference and a flexible and realistic standard of proof are essential aspects of the s.1
analysis, these concepts should be used as they have been used by this Court in previous cases. They must not be attenuated to the point
that they relieve the state of the burden the Charter imposes of demonstrating that the limits imposed on our constitutional rights and
freedoms are reasonable and justifiable in a free and democratic society.

The Act is but one facet of a complex legislative and policy scheme to protect Canadians from the health risks of tobacco use. However,
the objective of the impugned measures themselves is somewhat narrower than this. The objective of the advertising ban and trade mark
usage restrictions must be to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products. The
objective of the mandatory package warning must be to discourage people who see the package from tobacco use. While the limited
objective of reducing tobacco-associated health risks by reducing advertising-related consumption and providing warnings of dangers is
less significant than the broad objective of protecting Canadians generally from the risks associated with tobacco use, it nevertheless
constitutes an objective of sufficient importance to justify overriding the right of free expression guaranteed by the Charter. Even a small
reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of right of
free expression. With respect to the minimal impairment element of the proportionality analysis, the impugned provisions mandating a
complete ban and un-attributed package warnings do not minimally impair the right to free expression. The causal relationship between the
infringement of rights and the benefit sought may sometimes be proved by scientific evidence showing that as a matter of repeated
observation, one affects the other. Where, however, legislation is directed at changing human behaviour, as in the case of the Tobacco
Products Control Act, the causal relationship may not be scientifically measurable. In such cases, the Court has been prepared to find a
causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a
relationship between the infringing measure and the legislative objective. There does not appear to be any causal connection between the
objective of decreasing tobacco consumption and the absolute prohibition on the use of a tobacco trade mark on articles other than tobacco
products which is mandated by s.8 of the Act. There is no causal connection based on direct evidence, nor is there a causal connection
based in logic or reason. It is hard to imagine how the presence of a tobacco logo on a cigarette lighter, for example, would increase
consumption; yet, such use is banned. S.8 of the Act fails the rational connection test.

At the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression
as little as reasonably possible in order to achieve the legislative objective. The impairment must be minimal and the law must be carefully
tailored so that rights are impaired no more than necessary. It will be more difficult to justify a complete ban on a form of expression than
a partial ban. The distinction between a total ban on expression and a partial ban is relevant to the margin of appreciation which may be
allowed the government under the minimal impairment step of the analysis. While the government had a pressing and substantial objective,
and while that objective was rationally connected to the means chosen, the minimal impairment requirement was not met since the
government had exceeded a reasonable margin of appreciation given the need for consumers to obtain useful information about the
services provided. A full prohibition will only be constitutionally acceptable under the minimal impairment stage of the analysis where the
government can show that only a full prohibition will enable it to achieve its objective. Where, as here, no evidence is adduced to show
that a partial ban would be less effective than a total ban, the justification required by s.1 to save the violation of free speech is not
established. The advertising ban imposed by s.4 may be more intrusive of freedom of expression than is necessary to accomplish its goals.
Even on difficult social issues where the stakes are high, Parliament does not have the right to determine unilaterally the limits of its
intrusion on the rights and freedoms guaranteed by the Charter. Having found the requirement of minimum impairment is not satisfied for
s.4 and 9 of the Act, it is unnecessary to proceed to the final stage of the proportionality analysis under s.1; balancing the negative effects
of the infringement of rights against the positive benefits associated with the legislative goal.

Dissent: (LaForest)

The Act does not purport to proscribe the sale, distribution or use of tobacco products. Rather, it seeks to attain its purpose through the
institution of a prohibition on the advertising and promotion of tobacco products offered for sale in Canada and through the institution of a
requirement that manufacturers of tobacco products display health warnings on tobacco product packages. Parliament clearly intended to
protect public health by reducing the number of inducements for Canadians to consume tobacco, and by educating Canadians about the
health risks entailed in its consumption. A has conceded the objective of protecting Canadians from the health risks associated with
tobacco use, and informing them about these risks, is pressing and substantial. However, they submit that the measures employed under the
Act are not proportional to the objective.
40
The nature and scope of the health problems raised by tobacco consumption are highly relevant to the s.1 analysis, both in determining the
appropriate standard of justification and in weighing the relevant evidence. The imbalance between understanding of the health effects of
tobacco consumption and of the root causes of tobacco consumption raises a fundamental institutional problem that must be taken into
account in undertaking the s.1 balancing. A strict application of the proportionality analysis in cases of this nature would place an
impossible onus on Parliament by requiring it to produce definitive social scientific evidence respecting the root causes of a pressing area
of social concern every time it wishes to address its effects. The harm engendered by tobacco, and the profit motive underlying its
promotion, place this form of expression as far from the "core" of freedom of expression values, and thus entitle it to a very low degree of
protection under s.1. It must be kept in mind that tobacco advertising serves no political, scientific or artistic ends; nor does it promote
participation in the political process. Rather, its sole purpose is to inform consumers about, and promote the use of a product that is
harmful, and often fatal, to the consumers who use it.

The first step in the proportionality analysis requires the government to demonstrate that the legislative means chosen under the Act are
rationally connected to the objective of protecting public health by reducing tobacco consumption. It is sufficient for the government to
demonstrate that it had a reasonable basis for believing such a rational connection exists. There is, without question, a rational connection
between a prohibition on the distribution of free samples of tobacco products under s.7 and the protection of public health. Given the close
correlation between price and demand in a free market economy, and the addictive nature of tobacco, it is self-evident that the availability
of free tobacco will tend to increase consumption of that product. A base its argument principally upon the claim that there is no rational
connection between the prohibition on advertising and promotion of tobacco products under s.4, 5, 6, and 8 and the objective of reducing
tobacco consumption. A’s argument fails. Although there has not been a definitive study conducted with respect to the connection between
tobacco advertising and tobacco consumption, there was sufficient evidence adduced at trial to conclude that the objective of reducing
tobacco consumption is logically furthered by the prohibition under the Act on both tobacco advertising and promotion. There is a rational
connection between the prohibition on advertising and consumption under s.4, 5, 6 and 8 of the Act and the reduction of tobacco
consumption.

The next step in the proportionality analysis is to determine whether the legislative means chosen impair the right or freedom in question
as little as possible. The minimal impairment requirement does not impose an obligation on the government to employ the least intrusive
measures available. Rather, it only requires it to demonstrate that the measures employed were the least intrusive, in light of both the
legislative objective and the infringed right. The measures adopted under the Act satisfy the Oakes minimal impairment requirement. It
must be kept in mind that the infringed right at issue in these cases is the right of tobacco corporations to advertise the only legal product
sold in Canada which, when used precisely as directed, harms and often kills those who use it. There is no doubt that Parliament could
validly have employed the criminal law power to prohibit the manufacture and sale of tobacco products, and that such a prohibition would
have been fully justifiable under the Charter. There is no right to sell harmful products in Canada, nor should there be. Thus, in choosing to
prohibit solely the advertisement of tobacco products, it is clear that Parliament in fact adopted a relatively un-intrusive legislative
approach to the control of tobacco products. Under the Act, tobacco companies continue to enjoy the right to manufacture and sell their
products, to engage in public or private debate concerning the health effects of their products, and to publish consumer information on their
product packages pertaining to the content of the products. The prohibition under this Act serves only to prevent these companies from
employing sophisticated marketing and social psychology techniques to induce consumers to purchase their products.

The third part of the proportionality analysis requires a proportionality between the deleterious and the salutary effects of the measures.
Here, the deleterious effects of this limitation, a restriction on the rights of tobacco companies to advertise products for profit that are
inherently dangerous and harmful, do not outweigh the legislative objective of reducing the number of direct inducements for Canadians to
consume these products. Finally, simply because tobacco manufacturers are required to place un-attributed warnings on their products does
not mean that they must endorse these messages, or that they are perceived by consumers to endorse them. It is common knowledge
amongst the public at large that such statements emanate from the government, not the tobacco manufacturers. In this respect, there is an
important distinction between messages directly attributed to tobacco manufacturers, which would create the impression that the message
emanates from A and would violate their right to silence, and the un-attributed messages at issue in these cases, which emanate from the
government and create no such impression. It is a requirement imposed by the government as a condition of participating in a regulated
activity. The requirement that health warnings must be unattributed is also proportional to the objective of informing consumers about the
risks of tobacco use and they are rationally connected to this objective because they increase the visual impact of the warning.

• S.91(27) entity which was constitutionally valid.


• S.4, 8, and 9 as infringements of the Charter under s.2b

Judgements:
• 4/9: Relation to s.4 or 8 of the Act.
• 5/9: Relation to s.4, 8 or 9 of the Act. S.7 of the Act did not related to s.2(b) of the Charter so it did not have to be justified
under s.1.
• 5/9: No justification under s.1.
• La Forest: Objective of the legislation is to promote public health and education.
• McLachlin: Objective of the legislation is to prevent Canadians from being persuaded by advertisements to use tobacco
products.
• Narrow objective can make it difficult to find the pressing and substantial needs. Framing the objective influences
41

proportionality.
• McLachlin: Proportionality: No need for scientific proof in many cases; logic will work. Internal documents show
companies were trying to increase use and ‘lifestyle’ advertising seems to discourage quitting whereas warnings encourage. So
there is a rational connection (s.4 and s.9). S.8 has no rational connection. Banning a trademark on something like a lighter
would have no relation to reducing tobacco consumption.
• Complete ban on advertising may not be a good idea. A partial ban would be better.
• Commercial advertising is not as important as individual freedoms of expression.
• Minimal Impairment: S.4 fails. S.9 fails (Unattributed health warning). It would have been less impairing if the company
could attribute health warning to government of Canada. It would still achieve the same purpose.

• The meaning from a staring point should begin from the wording of the charter under s.1. The real test is depicted inside of
s.1 and that is the burden that the government has to make. When the government is acting as a singular antagonist, the least
stringent method of s.1 application should be used.
• If we are going to focus on the words what does reasonableness mean? McLachlin says to look at evidence from the
government that allows us to see if the limit on the right is reasonable.
• What about the notion of demonstrably justified? McLaughlin says the justification has to be done on the basis of evidence.
• Number of areas that McLachlin and LaForest are in disagreement about the application of the Oakes Test. LaForest says
flexible approach to Oakes test. We should not use the notion of context to ease the burden of the government to prove the limit.
• Notion of deference: McLachlin believes that it would not be carried to far. It is hard to draw a distinction between when
the government is acting as a single actor or when it is trying to juggle the interests of all Canadians. LaForest says that
deference in appropriate because there is interest of competing groups (health of Canadians, and tobacco advertising).

Standard of proof:
• McLachlin believes it should be on the standard of possibilities and not the scientific, criminal standard of proof. It should
be based on a balance of probabilities, a civil standard of proof.
• LaForest says that the standard of proof should be lower than the civil standard of proof. Give the government deference to
attenuate the standard of proof they will be held to.
Notion of Deference:
• Legislative Facts: Appellant courts don’t have to be deferential on legislative facts.

Thomson Newspaper Company v. Canada (AG) – 1998 SC

Facts:

Thomson brought an application under Ontario Rule 14.05(3)(g.1) for a declaration that s. 322.1 of the Canada Elections Act violated
s.2(b) and 3 of the Charter. Section 322 provided that no person shall broadcast, publish or disseminate the results of an opinion survey
respecting how electors will vote at an election or respecting an election issue that would permit the identification of a political party or
candidate form midnight the Friday before polling day until close of all polling stations.The government conceded that there was a prima
facie infringement of s.2(b).

Issue:

Whether s.322.1 of the Act infringes s.2(b)? Yes. Can it be justified under s.1? No.

Ratio: (Bastarache J.)

The issue of the standard and type of proof required under s.1 arises with particular acuity in the case at bar because the social science
evidence is in a state of some controversy. In light of this inconclusive evidence, the government submitted it is not for this Court to
second-guess the judgment of the legislature when it has made a reasonable assessment that an apprehension of harm exists. It also argued
that common sense applied to what is known establishes the reasonableness of Parliament's assessment of the situation. The degree of
constitutional protection may vary depending on the nature of the expression at issue. This is not because a lower standard is applied, but
because the low value of the expression may be more easily outweighed by the government objective. In this case, the speech infringed is
political information. While opinion polls may not be the same as political ideas, they are nevertheless an important part of the political
discourse, as manifested by the attention such polls receive in the media and in the public at large, and by the fact that political parties
themselves purchase and use such information. Indeed, the government argues that opinion polls have an excessive impact on the electoral
choices made by voters. This expression is not intrinsically harmful or demeaning to certain members of society because of its direct
impact, or its impact on others. The government urges, however, that under some circumstances polls may come to have an effect which
interferes with the ability of individuals to make an informed choice. The nature of the expression in issue here does not suggest that a
deferential approach is appropriate in this case.
42

R submitted that the sole objective of the provision on which it was relying was to provide a period during which the accuracy of a poll
could be publicly questioned and debated, so that the scientific validity and accuracy of any particular poll would be more fully known to
Canadian voters. The second purpose has nothing to do with a period of repose or reflection. Rather, the purpose is to provide an
opportunity for the last opinion surveys on which the voter might base his or her vote to be subjected to public scrutiny. An examination of
this purpose reveals some disturbing assumptions. First, this purpose does not rely on the inaccuracy of any opinion survey results, but
suggests that Canadians will become so mesmerized by the flurry of polls appearing in the media that they will forget the issues upon
which they should actually be concentrating. Canadian voters must be presumed to have a certain degree of maturity and
intelligence. Thus, there is nothing pressing and substantial served by the existence of a rest period for polls prior to the election date. S.
322.1 is not justified under s. 1 according to this objective. The purpose of guarding against the possible influence of inaccurate polls late
in the election campaign by allowing for a period of criticism and scrutiny immediately prior to election day, is a pressing and substantial
objective. The purpose of this particular limitation on expression is to ensure that information which the evidence indicates has an
important influence on the choice of at least some voters is presented according to the standards of accuracy which polls are normally
expected to attain. To the extent that the votes of some might be distorted as a result of polls being presented in a misleading fashion, this
is a pressing and substantial objective. S.322.1 does not minimally impair the right to freedom of expression guaranteed in the Charter and
is, therefore, not justified under s.1. S.322.1 is a crude instrument in serving the purpose articulated by the government.

Although there is a pressing and substantial objective in this case because there is a clear possibility that some voters might be misled by
such polls, it cannot be accepted that the harm in this case warrants a significant level of deference to the government in fashioning means
which trespass on the freedom of expression. Little deference should be shown in this case where the contextual factors mentioned above
indicate that the government has not established that the harm which it is seeking to prevent is widespread or significant. The blackout
period does not minimally impair the freedom of expression guaranteed in the Charter, and is therefore not justified under s.1. The harm
which the legislature is seeking to prevent does not warrant a high degree of deference to the legislature. The government is not dealing
with a vulnerable group which is in danger of manipulation or abuse because of an essential opposition of interests, or because of the
nature of the speech itself.

The benefits of the ban are marginal; the deleterious effects are substantial. First, the ban sends the general message that the media can be
constrained by government not to publish factual information. Second, it interferes with the reporting function of the media with respect to
the election, which is an interference with the freedom of the media when its participation is most crucial to self-governance. These are the
deleterious effects as they relate to the freedom of the speaker. Third, the ban denies access to electoral information which some voters
may consider very useful in deciding their vote. If they feel that their votes are better informed as a result of having this information, then
the ban not only interferes with their freedom of expression, but with their perception of the freeness and validity of their vote. This
undermines the very faith in the electoral process which the government suggests is one of the rationales for this ban. The doubtful benefits
of this ban are outweighed by its significant and tangible deleterious effects and therefore is not justified under the third stage of the
proportionality analysis

Dissent: (Gontier, J.)

The promotion of an informed vote over a misinformed vote meets the three purposes and truly serves the core values of the freedom of
expression in a free and democratic society: by allowing timely discussion of all published poll results, s.322.1 aims at fostering truth; by
keeping open the possibility of timely debate as to the validity of poll results, it promotes active political and social participation, rather
than condone passiveness as to poll results; by allowing for full scrutiny of the information carried by poll results late in the election
campaign, it promotes voters' self-fulfilment by ensuring that the intention voters really want to convey in casting their vote is actually
expressed. In elections, the debate ends with the vote. A multiplicity of potentially inaccurate polls, none of which are in time to permit
debate, fosters confusion and offers little protection to the public. Errors and misinformation may be corrected after the election, but the
value of the correction is lost.

The purpose of s.322.1 is to improve information to the public during election campaigns. It aims at balancing and enhancing Charter
rights, namely the informed exercise of the right to vote and a fundamental purpose of freedom of expression. S.322.1 aims at improving
the search for truth, by providing for the timeliness of the publication of poll results, so as to allow discussion, not simply proscribing
polls. It in no way dictates or deals with the content of expression. The objective of preventing the potentially distorting effect of public
opinion survey results that are released late in an election campaign when there is no longer a sufficient opportunity to respond is a
sufficiently important objective which meets the first step of the analysis under s.1. The rational connection is self-evident. Opinion polls
significantly influence voter choice and electoral campaigns. The publication of inaccurate opinion results may lead to voters making
misinformed decisions. There is a reasoned apprehension that voters will be deprived of the full exercise of their franchise. Ensuring that
polls that cannot be adequately, publicly and independently evaluated as to their correctness because of insufficient time are not published
clearly addresses this problem. There is simply no equally effective alternative to the current short-term blackout for achieving the
legislative objective. The impugned limitation minimizes the risks of publication and dissemination of misleading results on or just before
the crucial moment of the polling day, by allowing just enough time to collect any undisclosed methodological information, assess poll
results, discuss the assessment, criticize the analyses, and disseminate the results of the discussions throughout the electorate. While voters
may be credited with some knowledge of the reliability of poll results generally, surely it is legitimate for Parliament to provide them with
an opportunity of distinguishing poor from good polls.
43
The salutary effect of s.322.1 is to promote the right of voters not to be misled in the exercise of their right to vote. The deleterious effect
of the measure is that s.322.1 deprives some voters, who rely on polls to make their decision, of some late campaign opinion poll
results. This ban causes minimal impairment to freedom of expression because of its very short duration and because of the lack of
satisfactory alternatives available to tailor the measure to the legislative objective. On the other hand, s.322.1 has a positive impact on
freedom of expression. It promotes debate and truth in political discussion since it gives voters the opportunity to be informed about the
existence of misleading factual information. The salutary effects of the measure concerning both the right to vote and freedom of
expression thus outweigh the deleterious effects caused by the impugned provision. S.322.1 of the Act while it restricts freedom of
expression within the meaning of s.2(b), constitutes a reasonable limit demonstrably justified in a free and democratic society under s.1.

• Blackout during elections. Fear that if inaccurate polls were published immediately before the election, people might vote
on misinformation.
• Legislative Objective: Period of Rest: Protect the voter of the influx of information before the vote. This was not seen to
be a pressing and substantial objective. Inaccurate Polls: Protect the government from false or inaccurate polls. This was found
to be a pressing and substantial objective. The government relied on this objective.

Application of the Oakes Test:


• Objective of the law:
1. Period of Rest: Voters shouldn’t be subject to a flurry of info before the election.
2. To guard against an inaccurate poll: Information shouldn’t be put forward so late in the game, there’s no time to act if the
poll is inaccurate.
• The second objective was found to be pressing and substantial. Court didn’t find the first objective compelling because we
are rational and can determine what info we will take to be true and compelling. The government relied on the second objective.
• Proportionality test: Is there a rational connection between the means and the objective?
• While there is a connection, how can the objective be fulfilled when the means for determining the
accuracy of the info is not available (no methodology is released). Releasing the methodology is a better way to ensure that
the polls are accurate. There are problems at this stage, but the court decides to consider the degree of impairment. A partial
ban is better than a complete ban.
• If the objective is to test the accuracy of the information but there is no requirement that the pollsters release their
methodology how can that purpose be fulfilled? Releasing the methodology allows an assessment of the accuracy of the polls and is
a better way to fulfill the government’s objective. Banning the information altogether is not the best way to achieve the
government’s objective. A partial ban is better than a complete ban.
• Does the legislation minimally impair the right to freedom of expression?
• No evidence that polls are trying to manipulate the voters. There is a less intrusive way for the
government to achieve the objective – publish the methodology. Therefore the government doesn’t meet the minimal
impairment test. The government didn’t state why they didn’t explore or accept that alternative.
• Section 322.1 does not minimally impair the right to freedom of expression guaranteed in the Charter and is, therefore, not
justified under s. 1.
• The court enters into a discussion of the contextual factors again: there is no evidence that pollsters are trying to manipulate
the vote and voters are not a disadvantaged group. Because there was also an alternative method available the court does not meet its
requirements under s. 1.
• There is no consensus in other free and democratic societies as to how to approach these polls. Therefore, the experience of
other countries is not given as much weight as it is in Oakes.
• The court examines the reformulation of the third stage of the proportionality analysis from Dagenais:
“there must be a proportionality between the deleterious and salutary effects of the measures.” What we should focus on is
whether the benefits of the law is proportionate to the deleterious effects of the law (cost benefit analysis.) In the case at
bar, the benefits of the legislation do not outweigh the harm done to the media and the listener. We have a serious violation
of s. 2(b) because the media and the voter are being deprived of the right to receive and disseminate information. If the
objective of the law is to protect against inaccurate information, the court here says that this will not happen all that often.
The serious violation of the freedom of expression can not be balanced against such a minimal benefit.
• Is there proportionality between the effects of the law and the objective?
• Should focus on whether the benefits are proportionate to the harmful effects of the law – a cost-benefit analysis.
• Court finds that the negative effects are substantial – the government can silence the media and denies voters info they may
find useful, affects freedom of expression – the court considers the effects on the speaker (the media) and on the listener (the
voters).
• The benefit of the law was not seen as very substantial because inaccurate polls are rare and would not likely affect the
vote. The serious violation outweighs the rare occurrence of an inaccurate poll.
• The courts say that period of rest and inaccurate polls are not a pressing and substantial concern. Voters are rational and can
make their own choices without rest and in the face of polls. In terms of inaccurate polls, the court says there is information that
can allow a verification of polls.
• Legislation violated freedom of expression; question was whether it could be justified under s.1. In terms of minimal
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impairment, there is no evidence that the government was acting on a need. Voters are not a vulnerable group. The government
was not responding to a read harm.

Context
• Properly assesses objective and weigh means used to reach that goal against the objective.
• Look at context first under the Oakes test. This will inform how the rest of the test is applied.
• Context is a buzz word for deference to the government.
• Court looks at the vulnerability of the group in question, the group’s own fears and apprehension of harm, inability to
measure scientifically, the nature of the activity which is infringed, etc, to determine the context.
• Important to look at context to determine the nature of the right itself that’s being infringed. Big M also spoke of the
importance of context, so it’s not a new concept. Here, the court’s discussion is more explicit and relevant to a s.1 analysis.
• Here, Parliament is focusing on protecting vulnerability of voters.
• Standard of Proof: Government must have a reasonable basis for enactment. Scientific proof not necessarily needed, just
common sense, although this will not always be the test in every case. Scientific evidence is important (stricter standard).

Dissent:
• Objective of the law: Preventing inaccurate information and improving the info available to the public during
an election.
• Proportionality test: Rational connection: It is self-evident. Dissent isn’t troubled by the evidence problem.
The government doesn’t need to prove that inaccurate information will harm voters – court thinks this is obvious. The dissent
doesn’t have confidence in voters that the majority has. It gives deferential to the government in relation to evidence. Court
thinks it is a reasonable apprehension of harm in this case.

Prescribed by Law

• Perscibed by law is a threshold issue under s.1. before applying Oakes then must determine if the limitation is perscribed by law. If
the limitation is perscribed by law, and not through an administraive action, then apply Oakes.
• The idea that limits have to come by law, rather than the discretionary powers conferred.
• The limit may be expressly or impliedly prescribed by legislation or common law. Courts need not deal with reasonably and
demostrably justified.

1. Examines the source of the Charter violation: It must either be expressly there or be a limit that arises by necessary implication.
2. Common Law: Government action flows from the law.

R v. Therens – 1985 SC

Facts:

A police officer engaging in spot checks stopped the accused’s vehicle because it had a defective headlight. The officer detected an odour
of alcohol and made a formal demand for a roadside breath sample. The accused refused. The officer asked him to accompany him to his
police car and sit in the car. The officer then gave him two further opportunities to blow, but the accused refused. At no time did the officer
inform the accused that he had a right to retain and instruct counsel without delay. The accused was release and charged with having
refused to comply with a roadside demand under s.234.1(1) of the CC.

Issue:

Whether the right to retain counsel without delay is subject, in the case of s.23.1(1) demand, to a limit prescribed by law, within the
meaning of s.1? No.

Ratio: (LeDain, J.)

The limit will be prescribed by law within the meaning of s.1 if it is expressly provided for by statue or regulation, or results by necessary
implication from the terms of a statue or regulation or from its operating requirements. The limit may also result from the application of a
common law rule. A limit prescribed by law within the meaning of s.1 may result by implication from the terms of a legislative provision
or its operating requirements. It need not be an explicit limitation of a particular right or freedom.

The incident of impairment and the most effective time for law enforcement is in the late evening and early morning when the realistic
probability of detained person being ale to contact “forthwith” a knowledgeable lawyer to obtain advice is very low. There has to be a fair
degree of urgency in the taking of the sample because the longer it is delayed, the lower the BAC level of the detained person becomes.
The second, as drafted, does not permit a detained person, subject to a demand, to retain and instruct counsel before complying with such a
45

demand. The right to retain counsel is incompatible with the effective use of this device on a random basis with the purpose of
demonstrating a police presence so as to convince the driving public that there is a high probability of detection in the event that they drive
after drinking. A roadside test is to be administered at the roadside, at such time and place as the motorist is stopped, and as quickly as
possible.

• Roadside sample is a necessary implication.


• The word detention referred to a restraint of liberty other than arrest in which a person may reasonably require the
assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the
constitutional guarantee. The definition contemplated both physical constraint and control over movement by demand or
direction. In this case, since refusal to comply with a demand under s.235 was an offence, that criminal liability constituted
effective compulsion. In general, compliance with a demand from a police officer could not be considered voluntary since most
people would not know the precise extent of police authority and would feel compelled to comply.
• Police Discretion: Administrative decision and not something that flows from the law or is prescribed by law.
• The government cannot use s.1 for this breach and must go straight to remedies. Admin discretion should not be entitled to
be saved under s.1. A was detained w/in meaning of s.10(b) and the limitation imposed on A’s rights were not prescribed by
law. The limitation was imposed by conduct or discretion of police officer and therefore can’t be saved under s.1.
• The legislaiton gives a window of time to provide the opportunity to be told of the right to consel. Therefore, the limit does
not flow from the terms of the legislation. Therefore this is not a limit perscribed by law. The remedy would be under s.24(2):
the exclusion of the breathalizer certificate.
• No s.52 remedy because there is no legislationi to remedy. Only a s.24 remedy can apply. S.24(2) applies to evidence.
Evidence could be excluded only under s. 24(2), where to admit it would bring the administration of justice into disrepute. It
could not be excluded under s. 24(1) simply on the basis that it would be appropriate and just in the circumstances to do so.
• In applying s. 24(2), it was unnecessary to establish that the evidence would not have been obtained but for the Charter
infringement. All that was necessary was that the infringement of the right precede the obtaining of the evidence. In this case the
evidence was obtained in a manner that infringed T's right to be informed of his right to retain and instruct counsel without
delay.
• The denial of right to counsel was seen to be of such fundamental importance as to prima facie discredit the administration
of justice. However, under the state of the law at the time of arrest, the police officer was found to be entitled to assume in good
faith that Therens was not being detained and thus did not have a right to counsel on demand. Therefore, the admission of the
evidence would not bring the administration of justice into disrepute and the evidence could not be excluded.

‘Prescribed by Law’ and Administrative Discretion

Where a limitation on Charter protected rights arises from the action of state officials, not from a text of law, there can be no justification
under s.1. One of the first characteristics of a reasonable limit prescribed by the law is that it should be expressed n terms sufficiently clear
to permit a determination of where and what the limit is. A limit which is vague, ambiguous, uncertain, or subject to discretionary
determination is an unreasonable limit.

The doctrine of vagueness is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of
enforcement discretion. It can be raised under s.7, where it can serve as a principle of fundamental justice. A law can also be so vague as to
not constitute a limit prescribed by law for the purposes of s.1. Finally, vagueness may be relevant to the minimal impairment branch of
the s.1 analysis, where it can contribute to the related concept of over-breadth. The principles of fundamental justice require that laws
provide the basis for coherent judicial interpretation, and sufficiently delineate an area of risk. A law will be found unconstitutionally
vague if it lacks in precision so not to give sufficient guidance for legal debate. This requirement is founded on two rationales; the need to
provide fair notice to citizens or prohibited conduct, and the need to proscribe enforcement discretion.

The problem ‘prescribed by law’ is whether discretion granted to administrative officials has to be precisely defined within some
reasonable constitutional tolerance. Discretion is indispensable to the operation of the modern administrative state. But unchecked and
unstructured discretion are potent sources of infection for the underpinnings of the rule of law. The question becomes, what circumstances
will require that the discretion granted to administrative officials be drawn with greater than customary precision?

Vagueness and Over-breadth

Vagueness
• A law is vague when is imprecise or not clearly defined.
• Citizens should know what the law is: Fair notice of what conduct could result in charges or restraints.
• Vagueness could give administrative bodies too much power/discretion in interpreting law. Law cannot be so broad
that any conviction could be upheld. Limits must be precise. It allows officials to know when a charge is actually warranted.

Factors to be considered in determining whether a law is too vague:


46

1) Need for flexibility and the interpretative role of the courts.


2) Impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate.
3) Possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.

Over-breadth
• When something is over-encompassing and capture too many people
• Both concepts (vagueness and over-breadth are concepts that can interrelate (pg 332 bottom of page)
• These concepts are applicable in s.7 and s.1 analysis.
• In a s.7 analysis it comes in when we are looking at a principal of fundamental justice.
• Analysis: Looks at the means chosen by the state in relation to its purpose. If the state, in pursuing a
legitimate objective, uses means that are broader than is necessary to accomplish that objective, the principles of
fundamental justice will be violated because the individual’s rights will have been limited for no reason.
• Rational for this doctrine of over-breadth is balancing b/w rights and
• If a law is overbroad is that it captures too many people and we must fit it under the minimal impairment test
• Vagueness looks at limit prescribed by law

Nova Scotia Pharmaceutical Society v. The Queen – 1992 SC

Facts:

Twelve appellants were indicted on May 31, 1990 with two counts of conspiracy to prevent or lessen competition unduly, contrary to
s.32(1)(c) of the Combines Investigation Act. Both counts related to the sale and offering for sale of prescription drugs and pharmacists’
dispending services. On August 12th, the appellants made a motion for an order to quash the indictment on the basis that s.32(1)(c), 32(1.1)
and 32(1.3) of the Act violated s.7, 11(a) and 11(d) of the Charter and were therefore invalid. The arguments raised revolved essential on
the issues of vagueness. 32(1.1) stated that it would not be necessary to prove that the conspiracy would likely eliminate competition or
that it was the object of the parties to eliminate that competition. S.32(1.3) stated that it was necessary to prove the parties intended to enter
a conspiracy, but not necessary to prove that they intended the conspiracy to have the effect set out in (1).

Issue:

Whether s.32(1)(c) and (1.1) and (1.3) violate s.7 of the Charter on the grounds of vagueness? No.

Ratio: (Gontier, J.)


• void for vagueness doctrine does not require absolute certainly in laws; the interpretative role of the courts must not be
overlooked and the possibility of varying interpretations is not fatal
• vagueness can have constitutional significance in at least two ways in a s.1 analysis.
o law may be so uncertain as to be incapable of being interpreted so as to constitute any restrain on governmental power
 uncertainty may arise either from the generality of the discretion conferred on the donee of the power
 or use of the language that is so obscure as to be incapable of interpretation with any degree of precision using
the ordinary tools
o a law which passes the threshold test may be reason of its imprecision, not qualify as a reasonable limit under the s.1
analysis.
• Generality and imprecision of language may fail to confine the invasion of a Charter right within reasonable limits
• Factors to be consider
o need for flexibility
o interpretative role of the courts
o impossibility of achieving absolute certainly (a standard of intelligibility being more appropriate)
o possibility that many varying judicial interpretations may exist and coexist
• unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate.

What makes it sufficiently unvague


• word unduly in the act is at question
• while the word unduly is not defined by statute and defies precise measurement
• it is a word of common usage which denotes to all a sense of seriousness
• affected unduly is not affected to a minimal degree, but a significant degree
• the public policy aspects of s.32(1)(c) already offer a clear idea of what is meant by unduly lessening competition
• outlines an area of risk, agreements that lessen or prevent competition, and imposes some boundaries on enforcement discretion
inasmuch as courts will scrutinize the impact of the agreement on competition to see if it runs against public policy of free competition
47

• Further the section is made even more precise by considering the content of the inquiry it mandates; the structure of the market (to
ascertain the degree of market power of the parties to the agreement) and the behaviour of the parties to the agreement (to ascertain
behaviour that injures competition).
• The general treatment of the word unduly, combined with the public policy aspects of the legislation defeat the claim that the
provisions within the act are vague.

• “Unduly” in charge alleged to be vague.


• The doctrine of vagueness can be summed up in this proposition: a law will be found unconstitutionally vague if it so
lacks in precision as not go give sufficient guidance for legal debate. A law will be intelligible if it a) provides the terms
of legal debate and b) outlines an area of risk
• Vagueness can be raised in several ways:
• S.7 (Fundamental Justice) Challenge: Internal modifier so may apply to s.8 unreasonable search and seizure
• S.1 “in limine” prescribed by law at the minimum impairment stage: When a law is so vague that its effect is to be
overbroad, then it is analyzed under minimal impairment stage.
• A law should have precision to delineate areas of risk & accessibility (fair notice to the citizen) and be capable of being
intelligibly applied (limitation of enforcement discretion). The intelligibility standard must give the court sufficient guidelines
for legal debate.
• Court should be able to know the determinative elements of the offence to detemine intelligibility in reviewing an official’s
behavior. Courts will be reluctant to find a law so vague as to not be prescribed by law, and will rather balance under minimal
impairment when possible.

• Fair notice: Requires substantive fair notice, a subjective understanding that the law touches on conduct based on the values
underlying the enactment and the role it plays in society.
• Enforcement dicretion limitation: A conviction should not flow from decision to prosecute. Law shouldn’t eradicate defences.
Law must delineate a risk zone of permissable and impermissable conduct. This interrelates with fair notice concept. Guidance not
direction is required here. There is no guidance for legal debate under a vague law and thus there is no notice or limit on
enforcement.
• Test: A law will be found constitutionally vague if it so lacks in precision as not to give sufficent guidance for legal
debate.
• The Court finds unduly does not violate s.7. If you draft all possibilities then important content is left out. Look at unduly in
context and how the rest of the statute works with it. Here it has meaning and conceptual force. It is even more precise in light of the
structure of the market (behaving independently of the market in the context of conspiring to reduce competition)and the behavior of
the parties to the agreement (must be likely to injure competition). The history, and case law around the legislation, and the
connotation of seriousness that unduly carries, renders the law precise.
• Law is unconstitutionally vague if it so lacks precision as not to give sufficient guidance for legal debate. Here, “unduly” has no
precise meaning, but sense of seriousness denoted.

R v. Heywood – 1992 SC

Facts:

Police observed Heywood loitering with a camera near a playground on several occasions. He was arrested and charged with vagrancy
under s.179(1)(b) of the CC. A subsequent search revealed that Heywood had photographed the crotch area of young girls playing in the
park. Heywood challenged the vagrancy statues as contrary to the Charter.

Issue:

Whether the restriction on liberty is in accordance with the principles of fundamental justice? No.

Ratio: (Cory, J.)

It is clear that s.179(1) restricts the liberty of those to whom it applies. The section prohibits convicted sex offenders from attending at
school grounds, playgrounds, public parks or bathing areas; places where the rest of the public is free to roam. However, it applies without
prior notice to the accused, to too many places, to too many people, for indefinite periods with no possibility of review. It restricts liberty
far more than is necessary to accomplish its goal.

The meaning of a law may be unambiguous and thus the law will not be vague, however it may still be overly broad. Where a law is
vague, it may also be overly broad, to the extent that the ambit of its application is difficult to define. Over-breadth analysis looks at the
means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state
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objective. If the state uses means which are broader than necessary, the principles of fundamental justice will be violated because the
individual’s rights will have been limited for no reason. The effect of over-breadth is that in some applications the law is arbitrary or
disproportionate. Where an independent principle of fundamental justice is violated, any balancing of the public interest must take place
under s.1 of the Charter. A court must first determine whether the legislation infringes life, liberty, or security of the person in a manner
that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective.

The purpose of s.179(1)(b) is to protect children from becoming victims of sexual offences. However, the section suffers from over-
breadth and thus the deprivation of liberty it entails is not in accordance with the principles of fundamental justice. Its application to
schools and playgrounds is appropriate but to all public parks and bathing areas is overly broad because not all such places are places
where children are likely to be found. Public parks include wilderness parks and bathing areas include lakes and public beaches. If that
particular place is not frequented by children, to objective of protecting children is not furthered by limiting an individual’s freedom to
these places. It is also overly broad because of the absence of review. That means a person who has ceased to be a danger to children (or
never was, as it applies to all persons convicted of the listed offences without regard whether they constitute a danger to children) is
subject to the prohibition. Finally, the absence of notice is unfair and unnecessary. An accused should know of enforcements that could be
breached. Such a violation of s.7 can never be justified, except perhaps in times of war or emergency. The objective of s.179(1)(b) is
certainly pressing and substantial and its means are rationally connected to the objective, but because it is overly broad, it fails the
minimum impairment test.

Dissent: (Gontier, H.)

Interpreting s.179(1)(b) to prohibit lingering with an untoward or improper motive would be an example of an unconstitutionally vague
restriction on liberty. It is difficult to identify the factors to be considered or the determinative elements in ascertaining whether a motive is
untoward or improper. Qualifying malevolent or ulterior purposes by reference to the predicated offences eliminates any concerns as to
vagueness. The enumerated offences provide a clear basis for legal debate and narrow the scope of potential liability. The persons affected
would thus have notice o what is prohibited and prosecutorial discretion would be sufficiently restricted. This interpretation would
eliminate the prohibition being over-broad. A life-time prohibition of activities with a malevolent or ulterior purpose related to re-
offending is in now way objectionable or overbroad. The restriction is directly related to preventing re-offending. Prohibiting only conduct
which can be demonstrated to be part of the cycle of re-offending carefully balances the objectives of public safety and offender treatment
with a desire to limit the intrusiveness of the prohibition. Here, it was proven that the accused had a malevolent purpose related to the
predicate offences.

• Legislation applied to previously convicted criminals loitering near children in certain areas. The accused argued that his
liberty had been infringed. The objective is to protect children by restricting access to children by preventing offenders’ access to
public parks.
• Issue of over-breadth: Law or means is too sweeping measured against the objective. Vagueness and over-breadth lead to
arbitrariness. Citizens need to know what is allowed and what is not. The length of the application is also overbroad. It is also
presumed that the previously convicted continue to be a danger.
• Overall, the legislation encapsulates many people, whether they are a risk to children or not. Some offenders on the list of
crimes may not be a danger, or even have been a danger. There was also no notice of being under the law. Thus, s.179(1)(b) fails
the minimal impairment test under s.1.
• It is overbroad because:
1. It applies for life with no review.
2. It applies to all persons convicted of listed offences, whether they are a danger to children now or not.
3. The accused doesn’t have notice that he is affected by the law. The accused needs to be told that a predicate offence
distinguishes them.
4. Parks in essence are made for loitering.
5. The accused may have valid reason to be in a park.
• Test for Over-breadth: If the state, in pursuing a legitimate legislative objective, uses means which are broader than necessary to
accomplish the objective, the principle of fundamental justice will be violated because the individual’s rights will have been
limited for no reason. (The net has been case too wide.)
• Before an enactment can be found to be so broad it infringes s.7, it must be clear the legislation infringes life, liberty or security of
the person in a manner that is unnecessarily broad, going beyond what was needed to accomplish the governmental objective.
• Dissent: Reads down the legislation in a way that will not violate the Charter; he reads the law as if it contains a motive
requirement, he reads “loiter” to mean specific things. Dissent wants to uphold the law.

Fundamental Freedoms

1. Threshold Issues:
a. Standing
b. Justiciability
c. Government Action: Claimant must be challenging something in the realm of the government (government action
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or actor)
2. Does the law/government action in question violate any rights or freedoms under the charter
a. Define the scope of the right issue (what does the right include)

b. Look at if the right has been infringe/violated


- Look at the purpose and effects of legislation
- Look at underlying values legislation seeks to protect
- Look at historical and social contexts of legislation: Purposive interpretation in keeping with
the values the Charter was designed to protect.
3. Can the violation be justified under s.1?
a. Threshold issues in this section analysis.
b. Is there a limit prescribed by law?
c. Application of the Oakes test
4. If it is not saved by s.1, what is the proper remedy?
a. S. 52: Severance, reading in, reading out, striking down.
b. S. 24: (1) Damages and (2) Admissibility of evidence

On Liberty – John Stuart Mill

6. Liberty comprises of the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive
sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects.
7. Tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to consequences as
may follow; without impediment from our fellow creatures, so long as what we does not harm them, even thought they should think
our conduct foolish, perverse or wrong.
8. From the liberty of each individual, follows the liberty, within the same limits of combination among individuals; freedom
to unite, for any purpose not involving harm to others.

• No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government;
and none is completely free in which they do not exist absolute and unqualified.

Freedom of Conscience and Religion

• Must be a sincerely-held belief, although not all sincerely-held beliefs are supported.
• Can be a secular belief.
• Principle of non-coercion is important because State can’t kill the idea.
• Dignity shall not be violated – overall principle of freedom of conscience and religion (if no dignity, you are a slave)

Zylberberg v. Sudbury Board of Education – 1988 CA Ontario

Facts:

Z, parents of children attending public elementary school, and several other similarly interested parties, brought an application pursuant to
s.24(1) of the Charter for a declaration that s.28(1) of Regulation 262 under the Education Act was of no force or effect in that it violated
the fundamental freedom of conscience and religion under s.2(a) of the Charter. S.28(1) provided that schools shall be opened or closed
each day with a reading from Scripture and the recitation of the Lord’s Prayer. Z contends that the requirement that parents or pupils who
object to the pupils’ participation in the religious exercises prescribed by s.28(1) must request exemption there from, and that the pupils
must then undertake to exempt themselves, tends to pressure or coerce the pupils into participating and thereby infringes their right to
freedom of conscience and religion.

Issue:

Whether s.28(1) violates s.2(a) of the Charter? Yes.

Ratio: (Brooke, Blair, Goodman and Robins, JA)

The recitation of the Lord’s Prayer and the reading of scripture from the Bible imposes Christian observances upon non-Christian pupils
and religious observances of non-believers. The peer pressure and the classroom norms to which children are acutely sensitive are real and
pervasive and operate to compel members of religious minorities to conform to majority religious practices. Further, the requirement for
pupils to attend religious exercises compels students and parents to make a religious statement. The right to be excused from class does not
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overcome the infringement. The exemption imposes a penalty on pupils who exercise the exemption by stigmatizing them as non-
conformists and settling them apart from their fellow students. As the purpose of s.28(1) is religious, it cannot be justified under s.1. Even
if the purpose had been secular, there are less intrusive ways of impairing moral values through education than the means provided by
s.28(1).

Dissent: (LaCourciere, JA)

S.28(1) has a secular educational purpose with a religious component. It does not seek to compel participation in exercises with a religious
component by all public school children by way of the exemption. Further, it has never been the policy of the legislatures to separate the
church and the state and there are indication in the Constitution and Charter which contemplate a bridge between the church and state, at
least in the realm of public education.

• In the case of the violation of a Charter right the court finds that the issue must be approached from the perspective of the
individual whose right is alleged to be violated. It also adds to our understanding of what the court will find as being coercive.
• In this case forcing children with minority religious beliefs to seek an exemption forced them into making a religious statement
and this violated there freedom of religion.
• An Act that imposes on religious minorities a compulsion to conform to the religious practices of the majority violates s.2(a) of
the Charter. The reality of having to request an exemption from practising the religious activity creates problems of peer pressure and
stigmatisation.
• Must consider the point of view of the minority. The stigma outweighs any argument that it’s just a normal part of growing up
and learning that you’re different.
• The purpose of this law was religion, therefore not justified under s.1. Even if it had a secular purpose, the effects don’t meet the
other requirements because there are lesser intrusive methods of introducing religion to children (fails minimal impairment stage).
• Parents had standing because they were parents (had right to educate their children in particular way). As parents have freedom
of religion they must be able to choose the child’s religion.
• Must look at this from the standpoint of the students taking advantage of this exemption  what is the impact that the
exemption will have on the students?
• Party argued that it was healthy for students to engage in other religious beliefs than the ones they practice at home. The court
says that this argument cannot be accepted b/c it is not in line with s. 27 of the charter and that it is intrusive
• Is it justifiable under s.1? No, the purpose of the law is religious and that cannot be seen as a pressing and substantial concern
• Act imposes compulsion to conform to practices of majority on religious minorities. This compulsion amounts to the making of
a religious statement. The exemption imposes a penalty by stigmatizing its users as non-conformists.
• Trivial or unsubstantial violations are not in the scope of s.2(a).
• Dissent: Found no violation of s.2(a) as (1) children aren’t compelled because there is an exemption (therefore differs from Big
M where the sanction was criminal – there was no real option), and (2) there is a separation from the church and the state. In Jones
where a parent had to apply for a permit to school kids at home, was not a violation of s.2(a), it was a technical violation at most and
not significant enough to warrant a true violation.

Adler v. Ontario – 1996 SC

Facts:

The appellants send their children to private religious schools. Alder sought a declaration that non-funding of Jewish schools in Ontario
was unconstitutional. Elgersma sought a declaration that the non-funding of independent Christian schools infringed their Charter rights.
The trial judge found that A’s religious and equality rights under the Charter were infringed by that the legislation was justified under s.1.
The CA found that s.2(a) did not provide a positive entitlement to state support for the exercise of one’s religious practice and that any
infringement was justified under s.1. The majority found that there was not sufficient factual foundation with respect to the School Health
Support Services Program, which provides health services to students.

Issue:

1. Whether the definitions of board and school in s.1(1) of the Education Act, together with the annual general legislative grants,
infringe or deny A’s freedom of religion under s.2(a) or their s.15 equality rights by not providing funding to dissentient religion-
based schools? No.
2. Whether s.14 of Regulation 552 which prescribes school health support services to an insured person who is placed in a special
education program in a school, but not to an insured person in a dissentient religion-based school, infringes or denies A’s freedom of
religion or their equality by not providing these services to dissentient religion-based independent schools? No.

Ratio: (Iacobucci, J.)


51

S.93 of the Constitution grants power to the provinces to legislate with regard to education. S.93(1) states that no law may prejudicially
affect any right or privilege with respect to denominational schools which any class of persons had at the time of Union. The effect of this
subsection is to entrench constitutionally a special status for such classes of persons, granting them rights which are denied to others. This
section was the product of an historical compromise which was a crucial step in Confederation. It does not represent a guarantee of
fundamental freedoms. It is a comprehensive code with respect to denominational school rights and cannot be enlarged by s.2(a) of the
Charter. A has no claim to public funding for their schools. The rights in s.93 are limited to those enjoyed at the time of Confederation.
This notion also voids the claim under s.15 of the Charter. Further, funding for public schools is insulated from Charter attack, as
legislation enacted pursuant to the plenary education power granted to the provinces is part of the Confederation compromise. This power
is also not limited to only public and separate schools and can be exercised on other schools without Charter violation. However, the
ability to pass legislation does not equate to an obligation to do so.

With respect to the health services claim, these services should be characterized as educational services and not health services. It is
necessary to look at the context in which these services are provided, which is in schools. They are designed to ensure children with special
needs have full access to the public school system and it is a means to ensuring access to education. The regulation is simply a
manifestation of the government fulfilling its mandate to provide an education designed for all members of the community and thus, is
immune from Charter scrutiny.

(Sopinka, J.)

Plenary power itself is no different in character than any of the powers in s.92. When exercised in the manner expressly permitted by
s.93(3) in ration to denominational schools, the legislature is expressly authorized to make distinctions on the basis of religion. This is
what renders the legislation immune from Charter review. The appellants have the right to send their children to a religious school of their
choice, but they cannot complain that the Ontario Education Act prevents them from exercising this aspect of their freedom of religion
since it allows for the provision of education within a religious school or at home. The fact that no funding is provided for private religious
education cannot be considered to infringe A’s freedom to educate their children in accordance with their religious beliefs where there is
no restriction on religious schooling. There are many spheres of government action which hold religious significance for religious
believers. It does not follow that the government must pay for the religious dimensions of spheres in which it takes a role. This would lead
to an obligation for the state to fund other entities where religion might apply. Finally, the cost of sending one’s children to a private
religious school is natural cost of A’s religion and does not constitute an infringement of their freedom of religion. In regards to the health
services, if A has no basis for claiming a right to public funding for education provided in private schools, they can have no claim for
additional educational services available only in public schools.

Dissent: (McLachlin, J)

Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion
includes indirect forms of control which determine or limit alternative courses of conduct available to others. A provision which increases
the cost or burden of practising one’s religion may violate that person’s freedom of religion. The burden here is not one which constitutes
an infringement of freedom of religion. It is different in that it does not involve a state prohibition on otherwise lawful conduct and the sort
of absence of benefit complained has no history of recognition as a violation of freedom of religion. Absence of state funding for private
religious practices, as distinct from prohibitions on such practices, has never been seen as religious persecution. However, it is the failure
to fund assistance for children with special needs that violates s.15 and cannot be justified under s.1.

• Freedom of religion is defined as a privilege, not as a right. The courts will not interpret a Charter right in such a way that will
put it into conflict with another section of the Constitution. In the present case the majority of the court held that while the provincial
government had the power to pass legislation which would extend funding to the separate religious schools that it did not have the
obligation to do so.
• The Charter cannot be used to enlarge a right given under a separate section of the Constitution. One part of the Constitution
cannot be permitted to invalidate another.
• Provinces only have to fund school systems protected by law at Confederation. They remain free to fund other school systems.
However, an ability to pass legislation does not amount to an obligation to do so.
• S.93 is immune from Charter review because it is a plenary power of the province like s.92. Therefore, the province is expressly
authorised to make distinctions on the basis of religion; when exercised in the manner expressly permitted by s.93(3).

Iacobucci:
• Start by looking at s. 93 as a comprehensive code. By referring to it as a code he is saying that you cannot rely s. 2(a)
• S.93 gives the provinces jurisdiction to legislate regarding education. Court found that we can’t interpret one section of the
Constitution that would come into conflict with another part of the constitution. S.93 is a comprehensive code as it gives provinces
jurisdiction to legislation on separate and public schools, to interpret 2(a) in such a way to require provinces to fund non-catholic
schools this would conflict with s.93 of the Constitution. Therefore because the province funds only public schools this is not enough
to warrant a violation of s.2(a).
52

• These services are not related to health, it was related to educational services, therefore for the same reasons as mentioned in
issue 1, the provinces are not required to fund these health services.
• S. 93 creates an ability, not an obligation. The provinces can fund non-Catholic schools if they wish but s.2(a) does not impose
an obligation to do so. This is a negative conception of the right – freedom from being compelled or facing negative consequences of
such. But s.2(a) does not create a government obligation to act.
• S. 93 requires the government to fund all schools of denomination that were there during confederation

Sopinka & Major:


• The Act does not mandate that parents had to send kids to school in the public or private systems; if it had that would have been
a coercive infringement. The Act actually accommodates religious freedom.
• Sopinka’s view on s. 93 is that public school funding is not guaranteed by that section
• Freedom of religion does not mean the state should pay for one's religious practices.

McLachlin:
• The absence of benefits is not a violation of s. 2(a). Unlike Big M and Books there is no state prohibition of otherwise lawful
conduct. People remain free to educate their children however they deem fit.
• Not a situation of compulsion
• The effects of the governments decision good violate s. 2a of the charter
• There is a s. 15 violation, but it is justified under s. 1. Lack of funds for disabled kids violates s. 15 and is not justified under s.
1. The cost of reading in funds for all religions is huge, but reading in funds for handicapped is small.

B (R) v. Children’s Aid Society of Metropolitan Toronto – 1995 SC

Facts:

A were the parents of a child born prematurely who suffered from many physical ailments. Due to religious beliefs, they objected to the
use of blood transfusions. When the child was about a month old, physicians believed a transfusion was necessary. A provincial court
judge granted R a 72-hour wardship pursuant to the Child Welfare Act under the premise that the child was in need of protection. The
wardship was extended to 21 days when physicians wished to be able to do emergency transfusions, as well as during a scheduled surgery.
After the transfusions and surgery, the wardship terminated.

Issue:

Whether the wardship order and transfusions violated s.2(a) of the Charter? Yes. Can it be justified under s.1? Yes.

Ratio: (LaForest, J.)

The right of parents to rear their child according to their religious beliefs includes that of choosing education and medical treatments,
which is an equally fundamental aspect of freedom of religion. The purpose of the Act is not to limit Jehovah Witnesses to choose medical
treatments for their children; it is to protect children. The purpose does not infringe on the freedom of religion, but the same cannot be said
for its effects. The wardship order deprives parents of custody of their children, which in this case, has denied them the right to choose
medical treatment according to their religious beliefs. However, freedom of religion is not absolute, especially when this freedom impacts
others. It can be subjected to such limitations necessary to protect public safety, order, health or morals or the fundamental rights and
freedoms of others. It is not an infringement when the order is made in the child’s best interest. In this case, the Act seriously infringed on
A’s freedom to choose medical treatment for their child in accordance with the tenets of their faith, but following the s.1 test, the state
interest in protecting children is a pressing and substantial objective. The process contemplated by the Act is also carefully crafted,
adaptable to different situations, and far from arbitrary. It makes provision for notice to be given, for evidence to be called, for time limits
to be imposed on the wardship, as well as procedural protections to be afforded to parents. Therefore, the restrictions on parental rights are
amply justifiable.

(Iacobucci and Major, J.)

The class of parents caught by s.19(1)(b)(ix) of the Act simply cannot benefit from the protection of s.2(a) and therefore, are incapable of
crossing the first threshold of Charter analysis. There is thus, no initial constitutional infringement and no need to uphold any such
infringement under s.1. Freedom of religion is not absolute. The right itself must have a definition and even if a broad and flexible
definition is appropriate, there must be an outer boundary. Conduct that lies outside that boundary is not protected by the Charter, such as
this case. The constitutional question should be to what extent can an infant’s right to life and health be subordinated to conduct emanating
from a parent’s religious convictions? A parent’s freedom of religion does not include the imposition upon the child of practices which
threaten the safety, health or life of the child, and thus A cannot benefit from the protection of 2(a).
53

• The freedom of religion expressed in s. 2(a) is uninhibited, but the balancing of the right will still be carried out in s. 1. The
minority disagreed and held that freedom of religion does not include freedom to the extent of harm to others.
• La Forest (Majority): Freedom of religion includes the ability of parents to raise their children according to their religious beliefs
(including decisions about medical treatment). The majority is of the view that freedom of religion is not absolute and the limitation
should be assessed under s.1 (there is no internal limit to freedom of religion). Here is violation of the parents rights under s. 2(a), but
the violation can be justified under s. 1.
• Iacobucci and Major (Dissenting in part): The right of freedom of religion has some internal limits; freedom of religion is
defined in such a way that doesn’t include harming ones children. There is no violation of the parent’s rights under s. 2(a); the parent’s
right to freedom of religion does not outweigh the child’s right to life, liberty and security of person under s. 7. The interests must be
balanced.
• Both the majority and the dissent come to the same result in the end. However the significance of the difference between the
majority and the dissent is if the limit is included within the scope of the right itself then that may preclude the Charter claimant from
proving that there has been a violation of their rights. If, however, the limitation is dealt with under s.1 then the onus is on the
government; that is, it is easier for the government to gather evidence than it is for the claimant to do so on their own.
• In Big M the court held that we are supposed to take a broad and liberal approach to interpreting the scope of rights. It could be
argued here that the judgment of the majority is more in keeping with the principle from Big M.
• There was reference in the Adler case from Jones where the Court held that trivial or insubstantial burdens placed on an
individual will not amount to a violation of freedom of religion. There are other cases then where courts have said that the line must be
drawn at a certain point; there is some internal limitation.

• Majority: Liberty should be interpreted to include the right to make medical decisions on behalf of one’s children. Rights of the child
must be balanced with the rights of the parents.
• There is no violation of the principles of fundamental justice. The parents agree that the state can apprehend children, but they
contest the manner in which the child was apprehended. The court disagrees. The parents had the normal procedures concerning
apprehension available to them.
• Lamer, J.: Liberty should only be interpreted to include freedom from physical restraint or coercive powers from the state.
• Iacobucci, Major and Cory, J.: There is no violation of liberty in the circumstances of this case. Liberty only goes so far until it
infringes on someone else’s liberty. Here, the liberty of the parents cannot trump the liberty of the child. Liberty does not include the
right of a parent to deny medical treatment to a child.

R v. Morgentaler – 1988 SC

Facts:

Morgentaler was a qualified doctor who set up an abortion clinic in. The clinic was not an accredited hospital within the meaning of
s.251(4) of the CC which made it an offence to procure a miscarriage other than in an accredited hospital and without the approval of a
therapeutic abortion committee. He was acquitted at trial. The CA ordered a new trial. Morgentaler appealed to the SC.

Issue:

Whether the abortion provisions of the CC infringe 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 as formulated in s.7 of the Charter? Yes.

Ratio: (Wilson, J.)

In Roe v. Wade (US), the court held that a pregnant woman had the right to decide whether or not to terminate her pregnancy and that the
state could not interfere with certain fundamental personal decisions such as education, child-rearing, procreation, marriage, contraception
and termination. The same fundamental personal importance is reflected in the Charter. The question is whether the decision to terminate a
pregnancy falls within this meaning. The right to liberty in s.7 guarantees every individual a degree of personal autonomy over important
decisions intimately affecting their private lives, and thus encompasses the right to terminate a pregnancy. S.251 of the CC clearly violates
this right. The purpose of the section is to take that right away from a woman have it decided by a committee, which bases its decision on
criteria unrelated to a woman’s priorities and aspirations.

Legislation which violates freedom of conscience cannot be in accordance with the principles of fundamental justice within the meaning of
s.7. The primary objective of the impugned legislation must be seen as the protection of the foetus. This is a valid legislative objective. S.1
authorizes reasonable limits to be put upon the woman's right having regard to the fact of the developing foetus within her body. The
question is: at what point in the pregnancy does the protection of the foetus become such a pressing and substantial concern as to outweigh
the fundamental right of the woman to decide whether or not to carry the foetus to term? At what point does the state's interest in the
protection of the foetus become compelling and justify state intervention in what is otherwise a matter of purely personal and private
concern? Consistent with the position taken in Roe v. Wade, the value to be placed on the foetus as potential life is directly related to the
54
stage of its development during gestation. This progression has a direct bearing on the value of the foetus as potential life. This is not to
deny that the foetus is potential life from the moment of conception. It is simply to say that in balancing the state's interest in the protection
of the foetus as potential life under s.1 of the Charter against the right of the pregnant woman under s.7 greater weight should be given to
the state's interest in the later stages of pregnancy than in the earlier. The foetus should accordingly, for purposes of s.1, be viewed in
differential and developmental terms. S.251 takes the decision away from the woman at all stages of her pregnancy. It is a complete denial
of the woman's constitutionally protected right under s.7, not merely a limitation on it. It cannot meet the proportionality test in Oakes. It is
not sufficiently tailored to the legislative objective and does not impair the woman's right as little as possible.

(Dickson, CJ)

S.7 imposes upon courts the duty to review the substance of legislation once it has been determined that the legislation infringes an
individual's right to life, liberty and security of the person. The section states clearly that those interests may only be impaired if the
principles of fundamental justice are respected. First it is necessary to determine whether s. 251 of the Criminal Code impairs the security
of the person. Security of the person is not restricted to physical integrity; rather, it encompasses protection against overlong subjection to
vexations and vicissitudes of a pending criminal accusation. These include stigmatization of the accused, loss of privacy, stress and anxiety
resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the
outcome and sanction. State interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law
context, constitute a breach of security of the person.

S.251 is prima facie a violation of the security of the person of thousands of Canadian women who have made the difficult decision that
they do not wish to continue with a pregnancy. S.251 clearly interferes with a woman's bodily integrity in both a physical and emotional
sense. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own
priorities and aspirations, is a profound interference with a woman's body and thus a violation of security of the person. The operation of
the decision making mechanism set out in s.251 creates additional glaring breaches of security of the person, as it causes delay for women
who are successful in meeting its criteria. In the context of abortion, any unnecessary delay can have profound consequences on the
woman's physical and emotional well-being. S.251 also harms the psychological integrity of women seeking abortions. The procedure
involved in s.251, with the concomitant delays, greatly increases the stress levels of patients and that this can lead to more physical
complications associated with abortion.

Even if the purpose of legislation is unobjectionable, the administrative procedures created by law to bring that purpose into operation may
produce unconstitutional effects, and the legislation should then be struck down. Here, the means chosen to advance the legislative
objectives of s.251 do not satisfy any of the three elements of the proportionality component of Oakes. The procedures and administrative
structures created by s.251 are often arbitrary and unfair and impair s.7 rights far more than is necessary because they hold out an illusory
defense to many women who would prima facie qualify under the exculpatory provisions of s.251(4). Many women whom Parliament
professes not to wish to subject to criminal liability will be forced by the practical unavailability of the supposed defense to risk liability or
to suffer other harm such as a traumatic late abortion caused by the delay. Finally, the effects of the limitation upon the s.7 rights of many
pregnant women are out of proportion to the objective sought to be achieved. To the extent that s.251(4) is designed to protect the life and
health of women, the procedures it establishes may actually defeat that objective. The administrative structures of s.251(4) are so
cumbersome that women whose health is endangered by pregnancy may not be able to gain a therapeutic abortion, at least without great
trauma, expense and inconvenience. S.251 cannot be saved therefore, under s.1.

(Beetz, J.)

Before the advent of the Charter, Parliament recognized, in adopting s.251(4) that the interest in the life or health of the pregnant woman
takes precedence over the interest in prohibiting abortions, including the interest of the state in the protection of the foetus, when the
continuation of the pregnancy of such female person would or would be likely to endanger her life or health. The primary objective of
s.251 is the protection of the foetus. The protection of the life and health of the pregnant woman is an ancillary objective. The primary
objective does relate to concerns which are pressing and substantial in a free and democratic society and which justify reasonable limits to
be put on a woman's right. However, rules unnecessary in respect of the primary and ancillary objectives which they are designed to serve,
such as some of the rules contained in s.251, cannot be said to be rationally connected to these objectives under s.1. Consequently, s.251
does not constitute a reasonable limit to the security of the person. A pregnant woman's person cannot be said to be secure if, when her
life or health is in danger, she is faced with a rule of criminal law which precludes her from obtaining effective and timely medical
treatment. S.251(4) result in at least three broad types of additional medical risks; the risk of post-operative complications increases with
delay; the risk that the pregnant woman require a more dangerous means of procuring a miscarriage because of the delay; and possible
psychological trauma.

The primary objective of the protection of the foetus is the main objective relevant to the analysis of s.251 under the first test of Oakes.
The CJ incorrectly identifies the objective of balancing foetal interests and those of pregnant women, with the lives and health of women
as a major factor, as sufficiently important to meet the requirements of the first step of the Oakes inquiry. When the life or health of a
pregnant woman is not in danger and she seeks an abortion on the basis of her own non-medical "priorities and aspirations", it is plain that
the rules in s.251 precluding her from obtaining a lawful abortion have as their sole objective the protection of the foetus. The protection of
the foetus is a valid objective in Canadian criminal law. Certain of the rules governing access to therapeutic abortions free from criminal
sanction are unnecessary in respect of the objectives which s.251 is designed to serve. Their practical effect also undermines the health of
55
the woman which Parliament purports to consider so important. S.251 does not meet the proportionality test. It is not necessary to explore
the remainder of Oakes.

Dissent: (McIntyre, J.)

The proposition that women enjoy a constitutional right to have an abortion is devoid of support in the language of s.7 or any other section.
Furthermore, it would appear that the history of the constitutional text of the Charter affords no support for the appellants' proposition.
There has always been clear recognition of a public interest in the protection of the unborn and there has been no evidence or indication of
any general acceptance of the concept of abortion at will in our society. The interpretive approach to the Charter affords no support for the
entrenchment of a constitutional right of abortion. To invade the s.7 right of security of the person, there would have to be more than state-
imposed stress or strain. A breach of the right would have to be based upon an infringement of some interest which would be of such
nature and such importance as to warrant constitutional protection. The right to have an abortion is not such an interest. S.251 does not
violate s.7. Even accepting the assumption that the concept of security of the person would extend to vitiating a law which would require a
woman to carry a child to the completion of her pregnancy at the risk of her life or health, it must be observed that this is not our case.

A defense created by Parliament could only be said to be illusory or practically so when the defense is not available in the circumstances in
which it is held out as being available. The very nature of the test assumes, of course, that it is for Parliament to define the defense and, in
so doing, to designate the terms and conditions upon which it may be available. Parliament has set out the conditions, in s.251(4), under
which a therapeutic abortion may be obtained, free from criminal sanction. It is patent on the face of the legislation that the defense is
circumscribed and narrow. It is carefully tailored and limited to special circumstances. Therapeutic abortions may be performed only in
certain hospitals and in accordance with certain specified provisions. It could only be classed as illusory or practically so if it could be
found that it does not provide lawful access to abortions in circumstances described in the section. The evidence will not support the
proposition that significant numbers of those who meet the conditions in s.251 are denied abortions.

• Standing under the Big M exception in that no one should be convicted of a law that is unconstitutional. He can only receive a
s.52 remedy.
• S.251 infringed s.7 (violation of personal security) and was struck down in its entirety.

Dickson:
• Freedom includes freedom to bodily integrity and freedom from state imposed stress or threat.
• Taking away the right to decide is a potential violation of s.7. The criteria a woman mist meet to obtain an abortion is a relflection
of the state’s interest, not the woman’s.
• Availability of a clinic and delay of getting the permission to have the abortion, as well as the actual abortion, can also have
consequences that violate s.7. It is the effects that violate s.7.
• Where parliament creates a defence, it should not be illusory. In practice, this is what happens with s.251(4). The provisions are
unfair and cumbersome. “Health” is not defined, so it is vague and open to broad interpretation but different abortion committees.
• The procedures are arbitrary and unfair and women are impaired more than necessary.
Beetz:
• Right of access to medical treatment for a condition threatening life of health.
• Freedom from state interference in these rights.
• Procedural scheme makes it difficult to get an abortion and so violates a woman’s security. Women should also not have to
choose between protecting her health and facing criminal sanctions.
• There is a violation of s.7. It is okay that health is not defined because there is sufficient precision in the system. But the way the
procedures operate in practice is a problem (delays, etc.). The administrative structure is what violates s.7.
Wilson:
• Bodily integrity is not being treated as a means to an end.
• Right is taken away and given to a committee. S.251 results in a violation of liberty.
• Liberty includes making decisions that affect one’s private life. It should be extended to include a right for a woman to choose to
have an abortion.
• A deprivation of the s.7 right which has the effect of infringing a right guaranteed elsewhere in the Charter cannot be in
accordance with the principles of fundamental justice.
• That is, a violation of the right to life, liberty and security of person in conjunction with the violation of another right this
contravenes the principles of fundamental justice.
• It is a principle of fundamental justice when one Charter right violates another. There is a violation of freedom of conscience,
which creates a violation of s.7 when combined with a violation of life, liberty and security.
• MacIntyre (Dissent):
• S.7 does not include the right not to carry a baby to term without criminal sanctions. It is permissible for the state to interfere.
• Parliament has created a scheme for women who’s lives are at risk. This scheme is sufficient.
• Criminal defence should be read and practically available, but here there is no violation. It was open to Parliament to create a
narrow defence, so they did.
56

Syndicat Northcrest v. Amselem – 2004 SC

Facts:

A, Orthodox Jews, were co-owners of luxury condominium units in Montreal. They set up succahs on their balconies to fulfil a biblical
obligation to dwell in small, temporary enclosed huts during the annual nine day religious festival of Succot. R, the co-ownership
organization requested the removal of the succahs, claiming they violated the by-laws. R filed an application for a permanent injunction
prohibiting the erection of succahs. A challenged the respondent’s actions under the Quebec Charter. The Court was called upon to outline
the scope of freedom of religion under the Quebec Charter and the Canadian Charter.

Issue:

Whether A has the right to set up succhas? Yes.

Ratio: (Iacobucci, J.)

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve
the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs
connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which
allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith. The essence of the concept of
freedom of religion is the right to choose religious beliefs, the right to declare religious beliefs openly and without fear of hindrance or
reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. The purpose of s. 2(a) is to
ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in
some cases, a higher or different order of being. Accordingly, courts should avoid judicially interpreting and thus determining, either
explicitly or implicitly, the content of a subjective understanding of religious requirement, obligation, precept, commandments, custom or
ritual.

Here, the by-laws infringes A’s freedom of religion under the Quebec Charter. The Charter does not require a person to prove that his or
her religious practices are mandated by the tenets of their faith. A sincerely and honestly believed they were obliged to set up succahs, and
this was sufficient to bring their actions within the scope of freedom of religion. Even if it was constitutionally permissible to waive one’s
rights, there was no waiver on the facts. A has a right to set up succahs on their balconies for the annual festival of Succot, subject to the
undertakings they have given with regard to the size, placement, and general aesthetics of them.

Dissent: (Bastarache, Lebel & Deschamps, J.)

Freedom of religion ensures that every individual must be free to hold and to manifest without State interference those beliefs and opinions
dictated by one’s conscience. This freedom is not unlimited and is restricted by the right of others to hold and to manifest beliefs and
opinions of their own, and to be free from injury from the exercise of the freedom of religion of others. Freedom of religion is subject to
such limitations as are necessary to protect public safety, order, health or morals and the fundamental rights and freedoms of others.

The first step of the analysis consists in examining the belief of a claimant who adopts a particular religious practice in accordance with the
rites prescribed by his or her religion. To this end, evidence must be introduced to establish the nature of the belief or conviction, that is, to
determine upon what religious precept the belief or conviction is based. A claimant must prove that the conduct or practice to which he or
she seeks to have freedom of religion apply is in fact based on a precept of his or her religion. The test is reasonable belief in the existence
of a religious precept. In the absence of such proof, the court cannot assess the effects of the provisions or standards that, according to the
claimant, infringe the rights of one or more members of a religious group. In the second step, the judge considers the sincerity of the
claimant’s religious beliefs. The claimant must establish that he or she has a sincere belief and that this belief is objectively connected to a
religious precept that follows from a text or another article of faith. It is not necessary to prove that the precept objectively creates an
obligation, but it must be established that the claimant sincerely believes he or she is under an obligation that follows from the precept. The
essential test must be the claimant’s intention and serious desire to obey the fundamental precepts of his or her religion. Previous practice
is but one among a number of means of demonstrating this intention. While A sincerely believes that it is preferable to erect their own
succahs, it does not diverge from the precepts of their faith to accept another solution. The fundamental obligation of their faith is to eat
meals in a succah, and this was not hindered by the by-laws, as A could eat in the succahs of friends or family members. Thus there was no
violation of A’s freedom of religion.

• A claimant relying on conscientious objection must demonstrate (1) the existence of a religious precept, (2) a sincere belief that
the practice dependent on the precept is mandatory, and (3) the existence of a conflict between the practice and the rule.

Freedom of Expression
57

Section 2(b): Freedom of Expression


1. Scope of s.2(b):
• Activity must convey meaning
• All content is protected (Irwin Toy)
• Forms of expression that are violent in nature are not protected. It does not promote political or social values.
• Expression must be consistent with the values of the particular idea. The place of expression plays a role here. Is it a
place where a value can be promoted? (City of Montreal)
2. Violation of s.2(b):
• Purpose of legislation
• Effects of legislation
• Any restrictions on content of expression will violate s.2(b)
• If the law restricts form or place in the way a person can express, it will violate.
• Interference of values underlying expression will violate.

Irwin Toy Limited v. Quebec (AG) – 1989 SC

Facts:

S.248 and 249 of the Quebec Consumer Protection Act prohibited commercial advertising directed at children under 13, subject to
exceptions provided for in the regulations. The exceptions related primarily to magazines, inserts and store displays.

Issue:

Whether the relevant provisions offended s. 2(b) (right to free expression) of the Charter? Yes. Is it justified under s.1? ?

Ratio: (Dickson, CJ)

Not Acceptable
• Human activity cannot be excluded from the scope of guaranteed free expression on the basis of the content or meaning being
conveyed
o If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the
guarantee
o advertising aimed at children conveys a meaning and cannot be excluded as having no expressive content
o nor is there any basis for excluding the form of expression chosen from the sphere of protected activity
• The next question must be whether the purpose or effect of the government action in question was to restrict freedom of
expression
o if the government’s purpose is to restrict the content of expression by singling out particular meanings that are not to be
conveyed, it necessarily limits the guarantee of free expression
o if the government’s purpose is to restrict a form of expression in order to control access by others to the meaning being
conveyed or to control the ability of the one conveying the meaning, it also limits the guarantee
Acceptable
• aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose
is not to control expression.

There is no question that the purpose of s.248 and 249 was to restrict both a particular range of content and certain forms of expression in
the name of protecting children. However, the regulations in question do more that just restrict the manner in which a particular content
must be expressed. They also restrict content directly. Such a prohibition can only be justified if it meets the test under s.1. Here, P’s
activity is not excluded from the sphere of conduct protected by freedom of expression. The government’s purpose of s.248 and 249 and in
promulgating s.87 to 91 of the regulations was to prohibit particular content of expression in the name of protecting children.

• Any activity that conveys meaning meets the definition of expressive activity and will be included within the scope of s. 2(b).
Expression has both content and a form.
• Form: The method by which a person conveys there meaning. The form of expression may be limited (does not include violence).
• Content: The meaning being conveyed. There are no limitations of the content of expression guaranteed under s. 2(b). All manner
of content is protected under freedom of expression.
• Freedom of expression has its historical ties to the concept of democracy. Freedom of expression includes unpopular, shocking,
and outrageous expression but does not include violence.
• In Dolphin Delivery the court held that both threats of violence and acts of violence are not included within the scope of freedom
of expression. In this case the court does not go this far and only includes acts of violence.
• Does advertising aimed at children fall within the scope of activities protected under s. 2(b)? It is clearly activity that conveys
58

meaning and has a form and therefore advertising aimed at children is the kind of activity protected by s. 2(b).
• Does the law at issue violate freedom of expression as it has been defined in either its purpose or effect?
• Purpose:
• Legislation that seeks to control the content of the expression will violate freedom of expression in its purpose.
• Legislation that seeks to restrict the form of the expression will violate freedom of expression in its purpose if it is tied to the
content. (Colorable.)
• Legislation that seeks to restrict the consequence of the expression will not violate freedom of expression in its purpose.
• What is the mischief that the government is seeking to regulate? If it is a colorable attempt to regulate expression then the law
does violate freedom of expression in its purpose.
• Effect:
• In order for a Charter claimant to show there right has been violated by the effect of the law they must show that their activity
promotes at least on of the principles and values of free expression:
1. Attainment of truth
2. Participation in political debate and discussion
3. Attainment of self-fulfillment
• In the present case the legislation restricts the content of the expression itself – the legislation is aimed at the content of the
advertising. The legislation seeks to restrict access to the message being conveyed – the very purpose of the legislation therefore
violates freedom of expression under s.2(b) of the Charter. Although there was an infringement of s. 2(b) rights the majority of the
court upheld the legislation under s. 1 of the Charter.
• Commercial expression is within the scope of s. 2(b) and thus it follows that corporations may bring forward claims that there
own private interest has been affected. Therefore, Irwin Toy had standing as of right.
• The kind of the expressive activity in question is important for the courts analysis to justify the legislation under s. 1. The value
of individual self fulfillment is not seen as being as important as the other two values of free expression.
• In cases involving commercial expression the court often finds that the value of the expression falls under individual self
fulfillment and, as such, is not as valuable as other forms of expression.

Test: When faced with an alleged violation of the guarantee of Freedom of Expression:
1. Determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee. Activities not
within the protected sphere of conduct:
(1) Does not convey or attempt to convey a meaning, and thus has no content of expression or
(2) Which conveys a meaning but through violent form of expression,
2. Was the purpose or effect of the governmental action in issue to restrict freedom of expression?
Purpose
(1) If the purpose directly restricts the content of expression go to s.1.
(2) If the purpose restricts a form of expression tied to content to s.1.
(3) But, if the purpose aims to control only the physical consequences of activities, regardless of the conveyed meaning,
the purpose is not control of expression. Where the harm caused by the expression in issue is direct, without the intervening
elements of thought, opinion, belief, or a particular meaning, the act aims at harmful consequences not content. Go to Effects.
Effects: Does it interfere with content and conveyance? Even if the government’s purpose was not to control or restrict attempts to
convey a meaning, did the effect of the governmental action restrict the plaintiff’s free expression? P must demonstrate that her
activity promotes at least one of these principles:
1) Seeking & attaining the truth is an inherently good activity
2) Participation in social and political decision-making is to be fostered and encouraged
3) The diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant
environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed
3. S. 1 Analysis
a) Aimed at form but form is tied to content (if it is as though it were aimed at content) – violation of s.2b
Otherwise, you are cutting off the ability of those without money to communicate.
b) Aimed at form – just time, place and manner without hitting content at all, either directly or indirectly – no violation.

City of Montreal v. 2952-1366 Quebec Incorporated – 2005 SC

Facts:

R operates a club featuring female dancers in a commercial zone of downtown Montréal. To attract customers and compete with a similar
establishments, R set up a loudspeaker that amplified the music and commentary accompanying the show under way inside so that
passers-by would hear them. Around midnight on May 14, 1996, a police officer heard the music from a nearby intersection. R was
charged with producing noise that could be heard outside using sound equipment, in violation of articles 9(1) and 11 of the By-law
Concerning Noise.
59

Issue:

Whether article 9(1) of the By-law infringes s.2(b) of the Charter? Yes. Can it be justified under s.1? Yes.

Ratio: (McLachlin, CJ and Deschamps J)

The first question is whether the noise emitted by a loudspeaker from inside the club had expressive content. The answer must be yes. The
loudspeaker sent a message into the street about the show going on inside the club. The fact that the message may not, in the view of some,
have been particularly valuable, or may even have been offensive, does not deprive it of s.2(b) protection. While all expressive content is
worthy of protection, the method or location of the expression may not be. This case raises the question of whether the location of the
expression at issue causes the expression to be excluded from the scope of s. 2(b). In this case, although the loudspeaker was located on the
respondent’s private property, the sound issued onto the street, a public space owned by the government. Thus, the public square and the
speakers corner have by tradition become places of protected expression. In this case, the emission of noise onto a public street is protected
by s.2(b). The evidence does not establish that the method and location at issue here impeded the function of city streets or fail to promote
the values that underlie the free expression guarantee. This method of expression is not repugnant to the primary function of a public street.
If sound equipment were being used in a way that prevented people from using the street for passage or communication, the answer might
be different. Expressive activity should be excluded from the protective scope of s.2(b) only if its method or location clearly undermines
the values that underlie the guarantee.

Having concluded that the expression falls within the protected scope of s.2(b), it must be asked whether the by-law impinges on protected
expression, in purpose or effect. Here, the purpose of the By-law is benign. However, its effect is to restrict expression. Engaging in lawful
leisure activities promotes such values as individual self-fulfilment and human flourishing. The disputed value of particular expressions of
self-fulfilment, like exotic dancing, does not negate this general proposition. The By-law has the effect of restricting expression which
promotes one of the values underlying s. 2(b). The objective of the limitation is pressing and substantial. Noise pollution is a serious
problem in urban centres, and cities like Montréal are entitled to act reasonably and responsibly in seeking to curb it. Here the City chose a
two-pronged attack on noise pollution. First, it prohibited noises exceeding a stipulated degree of loudness. Second, it prohibited particular
noises, namely noise that can be heard from the outside and is produced by sound equipment, whether it is inside a building or installed or
used outside. Noise targeted by art. 9 is prohibited regardless of whether it affects an inhabited place. This is the essence of the regulatory
scheme the City put in place to deal with noise pollution on its streets.

The first question is whether the limit on noise produced by sound equipment is rationally connected to the City’s objective. Clearly it is.
People in urban neighbourhoods cannot expect to be free from the sounds of the many activities that go on around them. However, they
can and do expect the level of this intrusion to be limited, so that they can enjoy a measure of peace and quiet. The second question is
whether the measure impairs the right in a reasonably minimal way? Regulation by degree of loudness would not achieve the City’s goal
of eliminating, subject to exceptions, a certain type of sound that produced by sound equipment. Moreover, regulation by sound level
meters has definite limits. While some noises may be capable of being monitored in this way, some, like intermittent noises or random
noises, cannot. Rights should never be sacrificed to mere administrative convenience. The City’s measures do not go beyond what was
reasonably necessary in the circumstances and, as a result, its regulatory plan is entitled to deference. The expression limited by the By-law
consists of noise produced by sound equipment that interferes with the peaceful use and enjoyment of the urban environment. This
limitation therefore goes to the permitted forms of expression on city streets, regardless of content. In balancing the deleterious and
positive effects of the By-law, account must be taken of the fact that the activity was taking place on a street with an active commercial
nightlife in a large and sophisticated city. The beneficial effects of the By-law outweigh its prejudicial effects.

United Foods and Commercial Workers, Local 1518 v. K-Mart Canada Limited – 1999 SC

Facts:

Employees of K-Mart went on strike. During the strike, members of the union distributed leaflets at other K-Mart stores, describing K-
Mart’s allegedly unfair practices and urged customers to shop elsewhere. It appears the only result of the leaflets was that a small number
of customers were turned away. K-Mart applied to the Industrial Relations Council to restrain the leafleting activity at the other sites. The
Council ordered the Union to stop picketing at the other sites. The Council was replaced by the Labour Relations Board, which issued
reasons for this order. The Board rejected the Union’s argument that the statutory definition of “picketing” was unconstitutional and should
be read down to exclude leafleting in light of s.2(b) of the Charter. Application for reconsideration was dismissed, but the board did
conclude that the restriction of secondary picketing was overly broad. The BC SC dismissed an application for judicial review.

Issue:

Whether the definition of picketing in the Code infringed s.2(b) of the Charter, and if so, whether it was justifiable under s.1? No. The
definition is struck down and suspended for six months.
60

Ratio: (Cory, J.)

Freedom of expression is the foundation to a democratic society and should only be restricted in the clearest of circumstances. In Dolphin
Delivery, picketing was held to be a protected form of expression. Workers, particularly those who are vulnerable, must be able to
speak freely on matters that related to their working conditions. It is an essential component of labour relations. This freedom is
explicitly recognised by the Code under s.64, where members of the union are free to communicate information to the public with regard
to a labour dispute, except in a manner which may constitute as picketing. Leafleting is an important and legally recognised means of
distributing information. It clearly falls within the purview of s.2(b) of the Charter.

Picketing in the code is very broad and undoubtedly encompasses leafleting. Impugned legislation may infringe a Charter right or freedom
by its purpose or effects. However, the operation of the Code has the effect of restricting consumer leafleting and this infringes A’s
freedom of expression. Further, it cannot be justified under s.1. Consumer leafleting is a means of rational, informed discourse and is
different from a picket line. It does not have the same coercive component such as impeding public access to goods or services,
employee’s access to their workplace, and supplier’s access to the site of deliveries. Loss associated with the leaflet is no different than a
consumer boycott, and is acceptable only if consumers are able to determine for themselves what course of action to take without being
duly disrupted by the message. Here, the leafleting conformed with the following conditions: 1) The message was accurate, not defamatory
or otherwise unlawful, and did not entice people to commit unlawful or tortuous acts, 2) although it was carried out at neutral sites, the
leaflet clearly stated that the dispute was with the primary employer only, 3) the manner was not coercive, intimidating, or otherwise
unlawful or tortuous, 4) the activity did not involve a large number of people so as to create an atmosphere of intimidation, 5) the activity
did not unduly impede access to or egress from the leafleted premises, and 6) the activity did not prevent employees of neutral sites from
working and did not interfere with other contractual relations of suppliers to the neutral sites. This is a valid exercise of freedom carried
out by lawful means. The provision in the Code is a blanket and is not carefully tailored to the objective of minimising the harmful effects
to third parties.

• Secondary picketing which was a statutory prohibition. Was this a form of commercial expression or individual expression?
• Workers should be able to freely communicate with the public.
• The workers are in a vulnerable position and need to be able to express their opinion so public pressure can be brought to bear on
the employer and thus level the power dynamic which exists in the employer/employee relationship.
• Leafleting is a form of expression which is worthy of protections in the labour relations context (it is an activity which lends itself
to the dissemination of information by less powerful groups.)
• It was argued by R that as commercial expression leafleting should fall at the low end of the spectrum of protection under s.2(b).
The court found that there is much more at issue than just commercial expression; it relates to working conditions and the rights
of these workers. Leafleting was included in s.2(b).
• Fails the s.1 analysis by over-breadth. It does not minimally impair the right. The legislation may be aimed at preventing
defamatory, violent or coercive legislation, but it has potential to catch peaceful, lawful expression. Ultimately, there was not harm
caused by the leafleting.
• Court strikes down and suspends the legislation.
• This case is important for giving us an analysis on freedom of expression in a labour relations context. It is also important for
showing how the value of the expression will affect the government’s ability to justify the infringement under s.1.
• If the value of the expression is low it will be easier for the government to justify the infringement.
• If the value of the expression is high it will be harder for the government to justify the infringement.
• Leafleting must conform to the following conditions to constitute a valid exercise of freedom of expression:
1) The message conveyed is accurate, not defamatory or otherwise unlawful and does not entice people to commit unlawful or
tortuous acts.
2) The leaflet clearly states that the dispute is with the primary employer only
3) The manner in which the leafleting is conducted is not coercive, intimidating, or otherwise unlawful or tortuous.
4) The activity does not involve a large number of people so as to create an atmosphere of intimidation.
5) The activity does not unduly impede access to or egress from the leafleted premises.
6) The activity did not prevent employees of neutral sites from working.

The Right Not to Express

National Bank of Canada v. RCU – 1984 SC

Facts:

As a result of a merger, the National Bank closed a unionized branch of the Provincial Bank and incorporated it in a non-unionized branch
of the National Bank. The Canadian Labour Relations Board held that this integration constituted a sale of a business under s.144 for the
Canada Labour Code and that it had offended s.184(1)(a) and 3(a) of the Code. The Board imposed several remedies, one being to create a
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trust fund to promote the objectives of the Code and another being to compel the president to send a letter written by the Board to all
employees, informing them of the Board’s decision and creation of the fund.

Issue:

Whether the Board exceeded its jurisdiction by granting the above remedies? Yes.

Ratio: (Beetz, J.)

The letter does not mention that it was imposed by the Board and the person signing it cannot disclose this coercion without infringing the
order which prohibits an alteration of the document. The creation of the fund and the letter are thus open to the interpretation that they
result from an initiative of the Bank and the approval of the Canada Labour Code, which the fund is intended to promote. But no one is
obliged to approve of them; anyone may criticize them like any other statue, and seek to have them amended or repealed, though
complying with them so long as they are in effect. The remedies force the bank and its president to do something which may be misleading
or untrue. It cannot be presumed that Parliament intended something so totalitarian by creating the Board, nor that it would allow such an
infringement on the Charter. Freedom of expression includes the right not to express and freedom of assembly and association includes the
right not to assemble or associate.

• Bank tried to bust a union by closing a bank and opening another. The Labour Board said they couldn’t do this and made them
write a letter to all employees about the Board’s decisions.
• Is there a freedom not to express? Yes. The order for the letter could amount to coercion and misrepresentation. Forcing the bank
to write such a letter is coercive because the content of the letter was contrary to the banks own view of what an appropriate remedy
would be. Because the bank was not able to include its own feelings on the issue it could appear to those reading the letter that what
were contained in it were the views held by the bank.
• Freedom to express includes the freedom from being coerced or forced to expound certain views. Freedom of expression includes
the freedom not to express.
• All freedoms guaranteed by s.2 necessarily imply reciprocal rights: freedom of religion includes the right not to affirm beliefs;
freedom of expression includes the right not to express; freedom of assembly and freedom of association include the rights not to
assemble and not to associate.

The Right not to Express

If a person is compelled by the state or will of another to a course of action or inaction which he would not otherwise have chosen, he is
not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect from
compulsion or restraint. The right not to express oneself therefore encompasses the right not to express oneself in a manner dictated by the
state. It is unclear how far this doctrine extends, although it is directly applicable to the right to express or not express in a particular
language.

Group Hate Expression

R v. Zundel (No. 2) – 1992 SC

Facts:

Zundel was convicted of knowingly publishing a false statement which was likely to cause injury to a public interest contrary to s.177
(s.181 now) of the CC. He published a pamphlet titled "Did Six Million Really Die?" which denied the Holocaust. It made specific claims
about discrete historical incidents and the contents of publicly accessible historical documents and it purported to be a serious scholarly
endeavour. He was sentenced to nine months imprisonment.

Issue:

Whether a much broader and vaguer class of speech, false statements deemed likely to injure or cause mischief to any public interest, can
be saved under s.1? No.

Ratio: (McLachlin, J.)

To permit the imprisonment of people, or even the threat of imprisonment, on the ground that they have made a statement which twelve of
their co-citizens deem to be false and mischievous to some undefined public interest, is to stifle a whole range of speech, some of which
has long been regarded as legitimate and even beneficial to our society. Such provisions must be drafted with sufficient particularity to
offer assurance that they cannot be abused so as to stifle a broad range of legitimate and valuable speech.
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The actus reus of the offence is the publication of a statement, tale or news that is false and that causes or is likely to cause injury or
mischief to a public interest. The mens rea lies in the knowledge that the statement is false. The fact that provocative racial statements have
been, on the odd occasion in the past two hundred years, prosecuted as other criminal offences such as public mischief and criminal libel
sheds no light on the objective behind the enactment of the false news provision. The question of falsity of a statement is often a matter of
debate, particularly where historical facts are at issue. The element of the accused's knowledge of falsity compounds the problem, adding
the need to draw conclusion about the accused's subjective belief as to the truth or falsity of the statements. Finally, the issue of whether a
statement causes or is likely to cause injury or mischief to the public interest requires the identification of a public interest and a
determination of whether it has been or is likely to be injured. In the case of each of the three elements of the offence, the not
inconsiderable epistemological and factual problems are left for resolution by the jury under the rubric of fact. Thus, both in its breadth and
in the nature of the criteria it posits, s.177 poses difficulties not usually associated with criminal prohibitions, which traditionally demand
no more of a jury than common sense inferences from concrete findings on matters patent to the senses.

The purpose of free expression is to permit free expression to the end of promoting truth, political or social participation, and self-
fulfillment. That purpose extends to the protection of minority beliefs, which the majority regards as wrong or false. Thus the guarantee of
freedom of expression serves to protect the right of the minority to express its views, however unpopular it may be. It serves to preclude
the majority's perception of truth or public interest from smothering the minority's perception. A law which forbids expression of a
minority or false view on pain of criminal prosecution and imprisonment offends the purpose of freedom of expression. All
communications which convey or attempt to convey meaning are protected by s.2(b), unless the physical form by which the
communication is made excludes protection. In determining whether a communication falls under s.2(b), this court has consistently refused
to take into account the content of the communication, adhering to the precept that it is often the unpopular statement which is most in
need of protection under the guarantee of free speech.

Before a person is denied the protection of s.2(b), the court should be entirely certain that there can be no justification for offering
protection. The criterion of falsity falls short of this certainty, given that false statements can sometimes have value and given the difficulty
of conclusively determining total falsity. Applying the broad, purposive interpretation of s.2(b), the argument that those who deliberately
publish falsehoods are for that reason alone precluded from claiming the benefit of the constitutional guarantees of free speech cannot be
accepted. The difficulty in assigning an objective to s.177 lies in two factors: the absence of any documentation explaining why s.177 was
enacted and retained and the absence of any specific purpose disclosed on the face of the provision. Parliament has identified no social
problem, much less one of pressing concern, justifying s.177. To suggest that the objective is to combat hate propaganda or racism is to go
beyond its history and its wording and to adopt the "shifting purpose" analysis the court has rejected. Assuming a rational link between the
objective of social harmony and s.177, the breadth of the section is such that it goes much further than necessary to achieve that aim. The
effect of s.177 is to inhibit the expression or publication of any statements which may be found by a jury to be factual, false and likely to
cause injury or mischief to a public interest. Its danger lies in the fact that by its broad reach it criminalizes a vast penumbra of other
statements merely because they might be thought to constitute a mischief to some public interest, however successive prosecutors and
courts may wish to define these terms. The danger is magnified because the prohibition affects not only those caught and prosecuted, but
those who may refrain from saying what they would like to because of the fear that they will be caught. To justify an invasion of a
constitutional right on the ground that public authorities can be trusted not to violate it unduly is to undermine the very premise upon
which the Charter is predicated.

Expression which a jury might find to be a deliberate lie likely to injure a public interest and which would therefore be inhibited by s.177
may well relate to the "core" values protected by the guarantee. What is at issue is the value of all speech potentially limited by the
provision at issue. The broad range of expression caught by s.177 combined with the serious consequences of criminality and
imprisonment, makes it impossible to say that it is appropriately measured and restrained having regard to the evil addressed. It cannot be
justified under s.1 as a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. In contrast to
the hate propaganda provision (Keegstra), the false news provision cannot be associated with any existing social problem or legislative
objective, much less one of pressing concern. But even if the court were to attribute to s.177 the objective of promoting racial and social
tolerance and conclude that such objective was pressing and substantial to be capable of overriding a fundamental freedom, it would still
fail to meet the criteria of proportionality. S.177 catches not only deliberate falsehoods which promote hatred, but sanctions all false
assertions which the prosecutor believes likely to cause injury or mischief to a public interest, regardless of whether they promote the
values underlying s.2(b). When the objective is balanced against its invasive reach, there can be only one conclusion; the limitation of
freedom of expression is disproportionate to the objective envisaged.

Dissent: (Cory & Iacobucci, J.)

Constitutional protection under s.2(b) must be extended to the deliberate publication of statements known to be false which convey
meaning in a nonviolent form. Freedom of expression is so important to democracy in Canada that even those statements on the extreme
periphery of the protected right must be brought within the protective ambit of s.2(b). The second step of the test is to determine whether
the purpose of the impugned legislation is to restrict freedom of expression. Here, the purpose of s.177 is to restrict not all lies, but only
those that are willfully published and that are likely to injure the public interest. Although the targeted expression is extremely limited, the
provision does have as its purpose the restriction of free expression. Accordingly, it must be found that s.177 constitutes an infringement of
the freedom of expression guaranteed under s.2(b). There can be no doubt that there is a pressing and substantial need to protect groups
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identifiable under s.15 from the serious harm that can result from such expression. S.177 limits only that expression which is peripheral to
the core rights protected by s.2(b). Accordingly, deliberate and injurious falsehoods should not be accorded the greatest of weight in the s.1
analysis. It can therefore be concluded that restrictions on expression of this kind will be easier to justify than other infringements of s.2(b).
There can be no doubt that the suppression of the publication of deliberate and injurious lies is rationally connected to the aim of s.177 in
protecting society from the harms caused by calculated falsehoods and thereby promoting the safety and security of the community. Where
racial and social intolerance is fomented through the deliberate manipulation of people of good faith by unscrupulous fabrications, a
limitation on the expression of such speech is rationally connected to its eradication. Even if rationally connected, the means must impair
the freedom as little as possible.

Under s.177, A is free to tell all the lies that he wants to in private. He is free to publish lies that have an overall beneficial or neutral effect.
It is only where the deliberate publication of false facts is likely to seriously injure a public interest that the impugned section is invoked.
This minimal intrusion on the freedom to lie fits into the broad category of CC offences which punish lying. Four helpful criteria have
been identified in order to distinguish fact from opinion: specificity of the terms used, verifiability, linguistic context and social context.
The statement must have a sufficiently definite meaning to convey facts. The statement must be verifiable through empirical proof or
disproof. The statement must be made in a linguistic context in which it will be understood as fact rather than opinion. Allegations
appearing in the context of a satirical article are not likely to be taken to be facts even when expressed in factual form. However,
allegations prefaced by cautions that they are only opinion may also be found to be factual claims if they are so factually laden that the
caution is found to be a colourable attempt only to escape responsibility for allegations of fact. Finally, the statement must be considered in
its broader social context. Some forms of expression, such as academic periodicals, are accorded more authority and have traditions of
authenticity that influence their interpretation, while others, such as political signs or lampoons, have traditions of hyperbolic rhetoric.
Statements, such as the pamphlet at issue in this appeal, which are disguised as the reasoned product of scholarly investigation will be
accorded greater seriousness by the reasonable reader. A has not adopted a novel perspective, unearthed nontraditional sources or
reinterpreted traditional materials. He has lied.

At this stage in the s.1 analysis, there must be an assessment of the importance of the state objective balanced against the effect of limits
imposed upon the freedom. The type of falsehoods caught by s.177 serves only to hinder and detract from democratic debate. The
impugned provision is narrowly defined in order to minimally impair s.2(b). The prohibition of the wilful publication of what are known to
be deliberate lies is proportional to the importance of protecting the public interest in preventing the harms caused by false speech and
thereby promoting racial and social tolerance in a multicultural democracy. It cannot be said that the prohibition of the willful publication
of false statements that are known to be false is an infringement of the core values of s.2(b).

• No pressing or substantial objective behind s.177 because it was not connected to the purpose of the legislation.
• The law has not been carefully tailored and does not meet minimal impairment. The law has a chilling affect on speech that is
lawful. The legislation is, therefore, overbroad.
• Problems with interpreting ‘falsities.’ The objective and means are not balanced.

McLachlin (Majority):
• Parliament does not have an overriding objective here; the legislation is not meant to protect any one group and is a law inherited
from medieval England. These values cannot be in anyway linked to protection of minority groups.
• The wording of the section is very vague and wide and it is difficult to ascertain what expression and conduct falls under the
section.
• The section goes further than necessary to achieve any objective it had anyway; it does not minimally impair the right to freedom
of expression under s. 2(b). The fact that this section is rarely used shows that it is not necessary to maintain a democratic society.
This section cannot be justified under s. 1 of the Charter; the need for protecting society from false statements is not serious enough to
justify an infringement of the freedom of expression.
• Minimal Impairment: The text of the law is a high intrusion. The text is overbroad and it catches too much activity. Statement,
tale or news catches more than just the worst type of hate speech. The words Public Interest and Mischief chill many other types
of speeches that are of high value. The Criminal sanction is the most Draconian of sanctions. It is not limited to hate speech only.
It does not have the limitations in Keegstra. The costs outweigh the benefits.
Cory and Iacobucci (Dissent):
• The objective of the legislation is pressing and substantial; the law has developed over time to prevent social strife and protect
minority groups from the publication of false statements about them.
• The legislation is rationally connected to the aim; the infringement of this right is specific about false publications and is not as
overbroad as the majority tries to make it appear. S.181 can be justified under s. 1.
• The provision has a shifting purpose.

• The split here is also 4:3 as it was in Keegstra. The basic problem is that the Charter provisions are very wide and that they
contain many policy applications in them.
• These decisions turn on societal views, the type of people on the bench and the language used in the statute.
• To what extent does this limitation detract from societal values? If the infringement can be seen as promoting societal values the
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infringement will most likely be allowed to stand. It the infringement can be seen as being opposed to societal values then it will
most likely be struck down.
• Free speech in content neutral under the Charter.
• Both cases focused on mostly if the violations could be justified under s.1. In Keegstra the government tried to argue that because
hate speech is violent or analogous to violence it should not be protected within the scope of s.2(b). The crown also argued that the
speech had no redeeming value. Because hate speech infringes upon the equality rights of others and because hate speech is contrary
to s.27 those are arguments in favour of not recognizes hate speech as a protected form of expression.
• The court found that balancing of rights take place under s.1. Much will depend on the value of the speech that the court finds the
speech to have. Value is highly relevant to the amount of weight the court will give to freedom of expression in the balancing
portion of s.1. Because the majority of the court found that hate speech does not relate in a significant way to the value of freedom
of expression the court was able to justify the infringement of s.2(b).
• It is only certain forms of speech that will not be contained under s.2(b). These arguments based on violence and redeeming
qualities were not accepted by the court as they went to the content of the expression. All content is protected under s.2(b); even
where that content is highly problematic or promotes violence.

Pornography

Butler v. The Queen – 1992 SC

Facts:

Butler operated a video store which sold and rented hard core videos and magazines and sexual paraphernalia. He was convicted and fined
on charges of possessing, selling and exposing to public view obscene films contrary to s.159, now s.163, of the CC.

Issue:

Whether s.163(8) infringes s.2(b)? Yes. If so, can it be justified under s.1? Yes.

Ratio: (Sopinka, J.)

In order for the work or material to qualify as obscene, the exploitation of sex must not only be its dominant characteristic, but must be
undue. In determining when the exploitation of sex will be considered undue, the court has attempted to formulate tests. The most
important of these is the community standard of tolerance test. It is the standards of the community as a whole which must be considered
and not the standards of a small segment of that community such as the university community or a city. The community standards test is
concerned not with what Canadians would not tolerate being exposed to themselves, but what they would not tolerate other Canadians
being exposed to. The tolerance level will vary depending on the manner, time and place in which the material is presented as well as the
directed audience.

There has been a growing recognition in recent cases that material which may be said to exploit sex in a degrading or dehumanizing
manner will necessarily fail the community standards test. Among other things, degrading or dehumanizing materials place women in
positions of subordination, servile submission or humiliation. In the appreciation of whether material is degrading or dehumanizing, the
appearance of consent is not necessarily determinative. This type of material would, apparently, fail the community standards test not
because it offends against morals but because it is perceived by public opinion to be harmful to society. It would be reasonable to conclude
that there is an appreciable risk of harm to society in the portrayal of such material. The community may tolerate publications that cause
harm to members of society and therefore to society as a whole. Even if, at certain times, there is a coincidence between what is not
tolerated and what is harmful to society, there is no necessary connection between these two concepts. Thus, a legal definition of undue
must also encompass publications harmful to members of society and, therefore, to society as a whole. However, there is no necessary
coincidence between the undueness of publications which degrade people by linking violence, cruelty or other forms of dehumanizing
treatment with sex, and the community standard of tolerance. Even if certain sex related materials were found to be within the standard of
tolerance of the community, it would still be necessary to ensure that they were not undue in some other sense, for example in the sense
that they portray persons in a degrading manner as objects of violence, cruelty, or other forms of dehumanizing treatment.

The essential difficulty with the definition of obscenity is that undueness must presumably be assessed in relation to consequences. It is
implicit in the definition that at some point the exploitation of sex becomes harmful to the public or at least the public believes that to be
so. It is therefore necessary for the protection of the public to put limits on the degree of exploitation and, through the application of the
community standard test, the public is made the arbiter of what is harmful to it and what is not. The public has concluded that exposure to
material which degrades the human dimensions of life to a subhuman or merely physical dimension and thereby contributes to a process of
moral desensitization must be harmful in some way. It must therefore be controlled when it gets out of hand, when it becomes undue. The
internal necessities test, or what has been referred to as the artistic defense, has been interpreted to assess whether the exploitation of sex
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has a justifiable role in advancing the plot or the theme, and in considering the work as a whole, does not merely represent dirt for dirt's
sake but has a legitimate role when measured by the internal necessities of the work itself.

Pornography can be usefully divided into three categories: (1) explicit sex with violence, (2) explicit sex without violence but which
subjects people to treatment that is degrading or dehumanizing, and (3) explicit sex without violence that is neither degrading nor
dehumanizing. Violence in this context includes both actual physical violence and threats of physical violence. Relating these three
categories to the terms of s.163(8), the first is expressly mentioned. But, even in the absence of violence, sex coupled with crime, horror or
cruelty may fall within the second category. As for category (3), subject to one exception, it is not covered. The courts must determine as
best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from
such exposure. The stronger the inference of a risk of harm the lesser the likelihood of tolerance. In making this determination with
respect to the three categories of pornography, the portrayal of sex coupled with violence will almost always constitute the undue
exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex
that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue
exploitation of sex unless it employs children in its production. The court must determine whether the sexually explicit material when
viewed in the context of the whole work would be tolerated by the community as a whole. Artistic expression rests at the heart of freedom
of expression values and any doubt must be resolved in favour of freedom of expression.

In this case, both the purpose and effect of s.163 is specifically to restrict the communication of certain types of materials based on their
content. There is no doubt that s.163 seeks to prohibit certain types of expressive activity and thereby infringes s.2(b). The
prevention of dirt for dirt's sake is not a legitimate objective which would justify the violation of one of the most fundamental freedoms.
However, Parliament has the right to legislate on the basis of some fundamental conception of morality for the purposes of safeguarding
the values which are integral to a free and democratic society. Criminalizing the proliferation of materials which undermine another
basic Charter right may indeed be a legitimate objective. The overriding objective of s.163 is not moral disapprobation but the
avoidance of harm to society. It has been recognized that harm caused by materials which seriously offend the values fundamental to
society is a substantial concern which justifies restricting the otherwise full exercise of freedom of expression. The harm sought to be
avoided in dissemination of obscene materials is similar. The objective of avoiding the harm associated with the dissemination of
pornography here is sufficiently pressing and substantial to warrant restriction on full exercise of the right to freedom of expression.

The message of obscenity which degrades and dehumanizes is analogous to that of hate propaganda. The rational link between s.163 and
Parliament’s objective relates to the actual causal relationship between obscenity and the risk of harm to society. Parliament was entitled to
have a reasoned apprehension of harm resulting from the desensitization of individuals exposed to materials which depict violence, cruelty,
and dehumanization in sexual relations. There are several factors which contribute to the finding that the provision minimally impairs the
freedom which is infringed. First, the impugned provision does not proscribe sexually explicit erotica without violence that is not
degrading or dehumanizing. It is designed to catch material that creates a risk of harm to society. Second, materials which have scientific,
artistic or literary merit are not captured by the provision. Third, it is legitimate for the court to take into account Parliament's past
abortive attempts to replace the definition with one that is more explicit. The standard of undue exploitation is appropriate. The intractable
nature of the problem and the impossibility of precisely defining a notion which is inherently elusive makes the possibility of a more
explicit provision remote. Fourth, the impugned section has been held not to extend to the private use or viewing of obscene materials.

The final question to be answered in the proportionality test is whether the effects of the law so severely trench on a protected right that the
legislative objective is outweighed by the infringement. The infringement on freedom of expression is confined to a measure designed to
prohibit the distribution of sexually explicit materials accompanied by violence, and those without violence that are degrading or
dehumanizing. This kind of expression lies far from the core of the guarantee of freedom of expression. It appeals only to the base aspect
of individual fulfillment, and it is primarily economically motivated. The objective of the legislation is of fundamental importance in a free
and democratic society. The restriction on freedom of expression does not outweigh the importance of the legislative objective.

• Charged with possessing obscene material.


• What is the definition of obscene?
• Community Standard Test: Opinion of the Community as a whole – focuses on obscene materials on a national level. The
standard is what Canadians will not tolerate others being exposed to. This depends on public opinion.
• Degrading or Dehumanizing Test: Whether material places people in a subordinate or humiliating position; focuses on the harm
that obscene material is seen to have primarily on women and children. This depends on society’s perception of what is harmful.
• Internal Necessity or Artistic Merit Test: Whether the depictions have artistic merit or some other legitimate value or role. Even if
the work does violate either of the above two tests the work will not be considered “undue” if it is required for the serious
treatment of a theme.
• Test (Consolidation of Community Standard and Dehumanising Tests): Doesn’t include materials of moral disapproval, but
material that is harmful, degrading or dehumanising.
• The purpose of the section has shifted over time. The true purpose is to prevent harm, which is a pressing and substantial
objective. Harm is something that is anti-social. It is not just concerning porn, but explicit sex with violence.
• Obscenity Test: The courts must determine as best as they can what the community would tolerate others being exposed to on the
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basis of the degree of harm that may flow from such exposure. The stronger the risk of harm the less likely other Canadians would
tolerate that material being made available to the public. This is a combination of the community standards and degradation or
dehumanization test. The internal necessities test will be applied if the work fails the test but where it can be argued that the undue
exploitation is not the dominant theme of the work. The first two types of pornography will most likely always fail this test. The third
type of pornography will likely pass the test unless it involves children.
• The court finds that this violation can be justified under s. 1.
• The provision is not vague.
• At one time the objective of the legislation was to promote and protect morality but as time wore on this objective changed. The
objective of the legislation is not moral disapprobation but the avoidance of harm to society. Isn’t this analysis problematic as
being the shifting purpose analysis? How is this different from the ruling in Zundel? Here, even if morality was the initial
objective of the law, morality is not outside the power of Parliament to enact laws in relation to.
• The objective of this legislation is pressing and substantial. The court looks at laws that other free and democratic societies have
enacted as well as Canada’s international obligations under certain treaties it has signed. The court also looked at the Keegstra
case as well as the growth of the pornography industry to show that this is a pressing and substantial objective.
• The legislation meets the requirements of the proportionality test.
o The court begins its proportionality assessment by looking at the nature of the expression and finds that the only value
pornography relates to is self-fulfillment in its most base aspect. In addition the targeted material is expression which is
motivated by economic profit.
o Rational Connection: The court attenuates the burden of the government under the s.1 analysis. There is a casual link to
harm. The court does not need scientific proof, but a reasonable apprehension of harm. This is sufficient for the rational
connection. Where the government faces conflicting evidence it will not be required to prove that pornography is harmful. As
long as there is a reasoned apprehension of harm resulting from the desensitization of individuals exposed to materials which
depict violence, cruelty, and dehumanization in sexual relations then Parliament will be justified in passing the legislation.
o Minimal Impairment:The legislation minimally impairs freedom of expression: We are not dealing with a blanket
prohibition and only includes violent or dehumanizing pornography, there is the defence of artistic merit available to the
defendant, previous attempts to categorize and list banned pornography has failed, and the private possession of pornography
is not captured by this section, only possession of this pornography for the purpose of distribution. Material that is sexually
explicit will not be captured, but material that depicts harm. Excluded material includes material for scientific, artistic, and
literal purposes. Only undue exploitation of sex will apply to this case and does not include private material. This narrow
interpretation minimally impairs.
o Balancing: What is the value of porn? Does it go to the core values of s.2(b) or is it more fringe or going towards base self-
interest? The court decides the latter. The objective of the legislation is very important while the value of the expression is
very low. Therefore, the restriction on freedom of expression does not outweigh the importance of the legislative objective.
• S.163 was vague. It was not clear what type of conduct the provision is trying to prevent. The court gives s.163 a more precise
interpretation; the prevention of harm to society, an objective test.
• Critique: Reasonable apprehension of harm. Shouldn’t Parliament have to justify harm beyond a reasonable doubt?

American Booksellers Association v. Hudnut – 1985 CA US

Facts:

Indianapolis enacted an ordinance that prohibited trafficking in pornography, coercing others into performing in pornographic works, and
forcing pornography on anyone. It also authorized a right of action against the maker or seller by anyone injured by someone who has seen
or read pornography. Pornography was defined as the graphic, sexually explicit subordination of women, in words or pictures. The
definition made no reference to community standards or to the value of the work as a whole. The court held that the definition violated the
First Amendment guarantee of free speech, and therefore the further prohibitions were also held to be unconstitutional.

Ratio: (Easterbrook, J.)

The ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way, in sexual encounters
premised on equality, is lawful no matter how sexually explicit. Speech treating women in the disapproved way, as submissive in matters
sexual or as enjoying humiliation, is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a
whole. The state may not ordain preferred viewpoints in this way. The Constitution forbids the state to declare one perspective right and
silence opponents. Under the ordinance graphic sexually explicit speech is or is not pornography depending on the perspective the author
adopts. Speech that subordinates women and also, for example, presents women as enjoying pain, humiliation, or rape, or even simply
presents women in positions of servility or submission or display is forbidden, no matter how great the literary or political value of the
work taken as a whole. Speech that portrays women in positions of equality is lawful, no matter how graphic the sexual content. It
establishes an approved view of women, of how they may react to sexual encounters, of how the sexes may relate to each other.
Indianapolis justifies the ordinance on the ground that pornography affects thoughts. Depictions of subordination tend to perpetuate
subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape
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on the streets. In the language of the legislature, pornography is central in creating and maintaining sex as a basis of discrimination.
Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and
contempt it produces, with the acts of aggression it fosters, harm women's opportunities for equality and rights of all kinds. Yet this simply
demonstrates the power of pornography as speech. Pornography affects how people see the world, their fellows, and social relations. If
pornography is what pornography does, so is other speech. Sexual responses often are unthinking responses, and the association of sexual
arousal with the subordination of women therefore may have a substantial effect. But almost all cultural stimuli provoke unconscious
responses. People may be conditioned in subtle ways. If the fact that speech plays a role in a process of conditioning were enough to
permit governmental regulation, it would be the end of freedom of speech.

• No exceptions made for artistic merit.


• Pornography is defined very broadly in this case: The graphic, sexually explicit subordination of women, in words or pictures.
This restriction on pornography could not be justified; the finding that this particular law violated the first amendment is the end of the
analysis.
• Test: Incipient effect; the possibility of influencing someone (especially children)
• Mental intermediation will affect the influence
• Can choose one or other option
• Children unable to do this
• If you make the wrong choice - crime

R v. Sharpe – 2001 SC

Facts:

R was charged on a four-count indictment after two seizures of material. The first seizure consisted of computer discs containing child
porn. Two charges were laid; one for illegal possession under s.163.1(4), and one for possession for the purposes of distribution or sale
under s.163.1(3). The second seizure consisted of a collection of books, manuscripts, stories and photographs the Crown alleged
constituted child pornography. Two charges were laid; one of simple possession and one of possession for the purposes of distribution or
sale. R challenged s.163.1(4). He contended that the prohibition of possession violated freedom of expression. The Crown conceded that
the prohibition on the possession of child pornography infringed s.2(b). R accepted that harm to children justified criminalizing possession
of some forms of child pornography.

Issue:

Whether s.163.1(4) goes too far and criminalizes possession of an unjustifiable range of material? Yes.

Ratio: (McLachlin, J.)

Freedom of expression is not absolute. Overarching considerations, like the prevention of hate that divides society, or the prevention of
harm that threatens vulnerable members of our society may justify prohibitions on some kinds of expression in some circumstances. Any
attempt to restrict the right must be subjected to the most careful scrutiny. The law challenged in this appeal engages mainly the
justification of self-fulfillment. Child pornography does not contribute to the search for truth or to social and political discourse. The
concern in this appeal is that the law may catch forms of expression that do not pose a risk to children.

The right conferred by s.2(b) embraces a continuum of intellectual and expressive freedom. The possession of such material allows us to
understand the thought of others or consolidate our own thought. Without the right to possess expressive material, freedom of thought,
belief, opinion and expression would be compromised. Privacy is an important value underlying the s.8 guarantees against unreasonable
search and seizure and the s.7 liberty guarantee. However, the private nature of much child pornography cuts two ways. It engages the
fundamental right to freedom of thought, but at the same time, the clandestine nature of incitement, attitudinal change, grooming and
seduction associated with child pornography contributes to the harm it may cause children, rather than reduces it. Possession of child
pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of
children. It may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.

S.163.1(4) evinces a clear and unequivocal intention to protect children from the abuse and exploitation associated with child
pornography. It criminalizes the possession of a substantial range of materials posing a risk of harm to children. At the same time, the
legislation recognises the importance of free expression and the danger of a sweeping criminal prohibition. It catches visual representations
only where the sexual activity depicted is explicit, it targets visual materials only where they feature a sexual organ or anal region as a
dominant characteristic for a sexual purpose, and writings are caught only where they actively advocate or counsel illegal sexual activity
with persons under the age of 18. The objective of s.163.1(4) is to criminalize possession of child pornography that poses a reasoned risk
of harm to children. This objective is pressing and substantial. Turning to the proportionality test, the objective of the legislation is
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rationally connected to the prohibition on possession of child. Prohibiting possession of child pornography will reduce sexual abuse of
children because: (1) child pornography promotes cognitive distortions in abusers; (2) fuels fantasies that incite offenders; (3) prohibition
on possession assists law enforcement in combating production, distribution and use that result in direct harm to children; (4) child
pornography is used for grooming and seducing victims; and (5) in some cases uses real children in production. S.163.1(4) is also a
minimum impairment on the freedom of expression. Through the standard of impairing rights no more than reasonably necessary, the
legislation is saved from over-breadth by the mens rea requirement, and by the definitional limitation that the pornography pose a reasoned
risk of harm to children.

The appropriate remedy is to read into the law an exclusion of the problematic applications of s.163.1. For example self-created expressive
material, any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or
her own personal use; and private recordings of lawful sexual activity. Any visual recording created by or depicting the accused, provided
it does not depict unlawful sexual activity and is held by the accused exclusively for private use. These two exceptions would necessarily
apply to the offence of making child pornography under s.163.1(2). S.163.1(4) should be upheld on the basis that the definition of child
pornography should be read as though it contained these two exceptions.

(L’Heureux-Dube, Gonthier & Bastarache, J.)

It cannot be agreed that the scope of the prohibition against the possession of child pornography is overbroad, and why the legislation is
justified under s.1 in its entirety. In characterizing the right to free expression under s.2(b), the Court has developed a two-pronged test.
Initially, courts must determine whether the activity in question is expression for the purposes of s.2(b). It is incumbent upon the person
alleging a violation to prove that the activity conveys or attempts to convey meaning. Once it is established that the activity in question
conveys or attempts to convey meaning in a non-violent form, courts must turn to the second stage. This involves a determination of
whether the law or government action actually restricts expression. Determining whether expression is restricted is distinct from the first
step of deciding whether any particular activity constitutes expression. It is clear that s.163.1(4) restricts expression if the possession of
child pornography can be considered expression. It is unclear whether the requirement that an activity convey or attempt to convey
meaning excludes all activities which are not prima facie communicative from the scope of the right to free expression in s.2(b). Although
harmful, child pornography cannot be the basis for excluding it from the scope of s.2(b).

The very existence of child pornography is inherently harmful to children and to society. This harm exists independently of dissemination
and flows directly from the existence of the pornographic representations, which on their own violate the dignity and equality rights of
children. It is inherent because degrading, dehumanizing, and objectifying depictions of children, by their very existence, undermine the
Charter rights of children and other members of society. Child pornography eroticises the inferior social, economic, and sexual status of
children. It preys on preexisting inequalities. S.163.1 was enacted to protect children. The nature of the expressive activity at issue is
another important contextual factor that has emerged from s.2(b) jurisprudence. Child pornography is used to fuel the fantasies of
pedophiles and is also used to facilitate their exploitation of children. It hinders children's own self-fulfilment and autonomous
development by eroticising their inferior social, economic and sexual status. It reinforces the message that their victimization is acceptable.
It also undermines children's right to life, liberty and security of the person as guaranteed by s.7. In enacting s.163.1(4), Parliament set
social policy having regard to moral values, as it is entitled to do.

• Challenging possession of child porn only, not distribution.


• Violation of a freedom of expression in that this concerns individual fulfillment. The court must be careful of material created in
private.
• There is a pressing and substantial objective.
• Pervasive that there are defenses open (education, art, public good, etc.) but the legislation is over broad. Example: Personal
journals with personal child porn fantasies and personal visual depictions such as photos taken by teens (lawful acts) get swept up by
the legislation.
• McLachlin (Majority): Accepts the Crowns position that s. 2(b) is violated and turns to an analysis under s. 1. Privacy heightens
the seriousness of the violation but also heightens the harms created by child pornography more difficult to respond to and thus makes
Parliaments objectives all that more pressing and substantial.
• Most of the kinds of pornography that are captured by this section are of the kind that is harmful to children. However, there is
evidence that the legislation does go too far – the legislation captures certain kinds of so called child pornography that do not
cause harm towards children, for example (1) self created materials such as journals or diaries, and (2) privately created visual
recordings of lawful sexual activity made by or depicting the person in possession and intended only for private use. (The
legislation is over broad.)
• There is a reasoned apprehension of harm and the government has met its burden under the rational connection phase of the Oakes
test.
• Remedy: The two particular categories of pornography that do not go to Parliaments objective are read into the law as exceptions.
• L’Heureux-Dubé, Gonthier, and Bastarache (Dissenting in part): What we are dealing with is restriction on possession and
thus we are not dealing with a violation of freedom of expression under s.2(b). Possession of child pornography does not convey
meaning. They would not read in the exceptions to the definitions of child pornography. The interests of children should be seen as
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outweighing the rights of the possessors of pornography. Overall, even the categories that the majority finds over broad can result in
the type of harm the legislation is designed at preventing. It is important to give more deference to government to prevent the serious
harm that can occur from child pornography.

Freedom of Association

• Does not include the right to strike (Labour Trilogy)


• Freedom to establish, belong to and maintain groups or associations.
• Freedom to engage in activities of an association. These are Constitutionally protected activities for individuals, even if they are
undertaken by a collective or association.

R v. Skinner – 1990 SC

Facts:

On January 2nd 1986, R was charged with communicating in a public place for the purpose of obtaining the sexual services of a prostitute
contrary to s.195.1(1)(c) of the CC.

Issue:

Whether s.195.1(1)(c) infringes s.2(d) of the Charter?

Ratio: (Dickson, CJ.)

The offer of a service by a prostitute, or the request for that service by the prostitute's customer clearly falls beyond the ambit of any
definition of freedom of association. The starting point for an assessment of the s.2(d) challenge in this case is an inquiry into the essence
of the offence. The nature of the activity to which the legislation is directed is communicating in a public place for the purposes of
engaging in prostitution. In proscribing street solicitation for the purposes of prostitution, the provision attacks expressive activity of a
commercial nature. It focuses on the prostitute or customer who stops or communicates with another person in a public place for the
purposes of engaging in prostitution. In contrast, it does not attack conduct of an associational nature. It might be said that as the limitation
on freedom of expression to be found in s.195.1(1)(c) also has the effect of limiting association, the impugned section should be held to
violate s.2(d) as well as s.2(b). However, it cannot be said that freedom of association is infringed by s.195.1(1)(c) because that provision
has the effect of making it more difficult for individuals to transact commercial bargains for the sale of sex. The mere fact that an
impugned legislative provision limits the possibility of commercial activities or agreements is not sufficient to show a prima facie
interference with the s.2(d) guarantee of freedom of association.

Dissent: (Wilson, J.)

The Alberta Labour Reference stands for three propositions. First, a purposive reading of s.2(d) entails that at the very least freedom of
association protects a person's right to join with others in lawful common pursuits. The right to freedom of association is not limited to the
right to create and belong to an association. Second, the focus must be on whether one person seeks to associate with another, not on the
nature of the activities or goals that they wish to pursue in common. The actual activities the individuals wish to pursue in common are not
protected by s.2(d). Only the coming together is protected. Third, freedom of association will often be of importance precisely because it
is integrally linked to a person's ability to exercise other constitutionally protected rights. In a wide range of instances the freedoms
guaranteed in s.2 would be of little value if one could not engage in them with others.

The association which should be addressed here is the association of the parties to discuss the possibility of providing or obtaining a sexual
service. The parties may never in fact engage in sexual activity. They will nonetheless have associated in order to pursue a common goal,
namely to negotiate a commercial transaction. A provision which prohibits parties from associating with a view to pursuing a lawful
common objective infringes s.2(d), whether that objective is entry into a commercial transaction or some other lawful objective. The
prostitute or customer who relies on s.2(d) is not claiming that prostitution is constitutionally protected by this provision. He or she is
simply advancing the proposition that, so long as it remains lawful to sell sex for money, there is a right to associate with others in order to
reach an agreement for this purpose. It is the fact that the parties to this transaction associate that is relevant to a s.2(d) analysis, not the fact
that the reason for which they associate is to effect a commercial transaction in which sex is ultimately exchanged for money.

It is far from obvious that the impugned provision does not seek to prohibit certain kinds of associational activity and expressive activity. It
also seeks to prohibit efforts to stop someone in a public place for the purpose of negotiating a purchase or sale of sexual services. It
interferes directly with a prostitute's ability to associate with potential customers and vice versa. They can neither associate with each other
nor talk to each other in a public place or a place open to public view. Given that the legislature was concerned to deal with the social
nuisance accompanying the concentration of street solicitation, it is not surprising that they would seek to prevent prostitutes and potential
customers from associating in public places as well as making deals in public places. But the end result is that the provision not only
infringes the right to freedom of expression, it also infringes the right to freedom of association. This is also the effect. In limiting the
70
circumstances in which a prostitute may communicate with a potential customer to situations in which they are not in a public place or a
place open to public view, the impugned provision has the effect of placing serious restrictions on their freedom to associate. As a result,
s.195.1(1)(c) infringes the right to freedom of association and must be justified under s.1.

The nuisance caused by street solicitation is a pressing and substantial concern that satisfies the first branch of the test. S.195.1(1)(c) is
rationally connected to the prevention of the nuisance. The logical way to prevent the public display of the sale of sex and any harmful
consequences that flow from it is through the twofold step of prohibiting the prostitute from soliciting prospective customers in places
open to public view and prohibiting the customer from propositioning the prostitute likewise in places open to public view. In terms of
proportionality, the question is whether it is reasonable and justifiable to limit freedom of association in the manner that s.195.1(1)(c) has
done in order to deal with the nuisance caused by street solicitation. S.195.1(1)(c) fails at this branch, as it prevents a prostitute and
potential customer from associating in a wide range of circumstances in which no nuisance will result from their meeting together.

Because of the remarkably expansive meaning given to public place in s.195.1(2), the proscribed meeting will constitute a criminal offence
even although it takes place in a secluded area where there is no one present to see it let alone be offended by it. It is not reasonable to
prohibit associational activity that harms no one on the basis that in some circumstances and in some areas a high concentration of that
activity may give rise to a public or social nuisance. If such activity is to be prohibited, there must be a much closer nexus between the
associational activity that is prohibited and the nuisance to which it is alleged to give rise.

• Communicating in a public place for the purpose of prostitution. This was challenged under s.2(b) and (d).
• Dickson: More freedom of expression concern rather than freedom of association. Communication is the offence. This is also a
commercial transaction. In view of not creating a slippery slope, regulations of commercial transactions to be a violation of s.2(d)
should not be created. Overall, this is a violation of s.2(d), but it can be upheld under s.1.This section of the Code does not relate to
freedom of association; it is clearly beyond the kinds of things protected within the scope of s. 2(d). This section of the Code is aimed
at expression, not association. Freedom of association protects more formal associations; two people getting together on the street to
conduct a commercial transaction are not protected under freedom of association.
• The law violates s. 2(d) in both purpose and effect.
• The effect of the law is so broad and violates the ability of individuals to come together and associate. The definition of public
place is overly broad.
• The actual purpose of the law is to restrict ones ability to associate with another person, in this case, a prostitute.
• The objective is seen as not being the eradication of prostitution itself, but rather dealing with the nuisance created by prostitution.
As such the legislation has a pressing and substantial objective.
• Rational Connection – the means of the legislation are rationally connected its objective.
• This legislation fails the minimal impairment stage of analysis; the definition of public place is over broad.
• Freedom of association protects formal associations, not meetings between individuals for commercial purposes. If the court sees
expressive activity in the content the matter will be dealt with under s. 2(b) and not section 2(d).
• Wilson (Dissent): Actual purpose behind the association is irrelevant. As long as there is regulation, it should be a violation. Plus,
prostitution itself is legal, so there is no reason to prohibit an association. This is the purpose and effect of the legislation. While there
is a pressing and substantial concern, the proportionality test is not met because the legislation is not minimally impairing. S.2(d)
should be seen as protecting the individuals ability to associate with other people. Prostitution itself is lawful and as such this case
falls within the scope of s.2(d) as identified in the Labour trilogy of cases. It is important to protect associational activities because in
so doing the right to have someone listen to your expression will be protected; there is a relationship between freedom of association
and freedom of expression.

Dunmore v. Ontario (AG) – 1994 SC Did not finish reading!!!

Facts:

In 1994, Ontario enacted the Agricultural Labour Relations Act, which extended trade union and collective bargaining rights to agricultural
workers. Prior to the adoption of this legislation, agricultural workers had always been excluded from Ontario's labour relations regime. A
year later, by virtue of s.80 of the Labour Relations and Employment Statute Law Amendment Act, the legislature repealed the ALRA in its
entirety, in effect subjecting agricultural workers to s.3(b) of the Labour Relations Act, which excluded them from the labour relations
regime set out in the act. S.80 also terminated any certification rights of trade unions, and any collective agreements certified, under the
ALRA. A brought an application challenging the repeal of the ALRA and their exclusion from the LRA, on the basis that it infringed their
rights under s.2(d) and 15(1). Both the Ontario Court and the CA upheld the legislation.

Issue:

Does excluding the agricultural workers from the legislation violate the freedom of association guarantee under s.2d of the CCRF? Yes.

Courts view of the scope of s.2d:


(1) The court says that it includes the establishing, belonging and maintaining of an association.
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(2) The freedom to exercise in an association those activities that are constitutionally protected
(3) The freedom to engage in lawful activity
(4) No protection of activity just based on that activity being foundational or essential feature of the
organization
• There are some collective activities that if not acknowledged the individual rights cannot be recognized
• Sometimes there are activities that are qualitatively different once engaged in by groups as opposed to by individuals
• The court reverses a prior decision and says that some activities that go to the root of the organization that are
foundational will be protected.
• Extended to include freedom to engage in collective activities in which only associations can engage.
S.2(d) must protect those activities that are fundamental to the associations themselves.

Purpose of s.2d:
• Protect individual interests and rights to come together with their interests. Also, sometimes protecting individual interests
includes protecting group interests.
• Collective activities on the part of an association that cannot be done by individuals acting alone (can only be done by a group).
This freedom doesn’t go so far to include collective bargaining or the right to strike.
• In terms of deciding when the state must be proactive and intervene, the context of the situation must be considered. If no state
help is required and a collective can be made without state intervention, there is not need for state intervention.

How do we decide if an activity is protected or unprotected?


• It is to be decided by looking at whether the legislation is aimed at regulating activities because those activities are conducted by
associations or groups.
• To establish a violation of s.2(d), A must demonstrate that their claim relates to activities that fall within the range of activities
protected by s.2(d), and that the impugned legislation has, either in purpose or effect, interfered with these activities. Here, the effect
of the legislation impeded the formation of association.
• A does not claim a constitutional right to general inclusion in the LRA, but simply a constitutional freedom to organize a trade
association. This freedom to organize exists independently of any statutory enactment, although its effective exercise may require
legislative protection in some cases. A has met the evidentiary burden of showing that they are substantially incapable of exercising
their fundamental freedom to organize without the LRA's protective regime.

Notion of State Responsibility:


• Court says that we are dealing with a situation where the state has acted, so the fact that the legislature has excluded some
workers may mean that they don’t want interfere with those workers with there freedom of association but if we take it to the next
level in effect what the government is doing is creating a situation where it is not a true freedom to associate b/c employees may not
be protected against the actions of the employers – the labor board allows for protection against such acts by the employer

Application to the Case:


• On the face, the legislation doesn’t seem to prohibit association, but the effects do. Workers are excluded from the
legislation. It is necessary for them to be included, as they can exercise their freedom of association.
• The court says that they cannot form a union without that protection. If the group wants to organize they need the protection
of the labor relations board.
• In some cases s. 2(d) should be extended to protect activities inherently collective in nature, in that they cannot be performed by
individuals acting alone.
• Trade unions develop needs and priorities distinct from those of their members individually and cannot function if the law protects
exclusively the lawful activities of individuals. The law must recognize certain union activities may be central to freedom of association
even though they are inconceivable on the individual level.
• To make the freedom to organize meaningful, in this very particular context, s. 2(d) of the Charter may impose a positive obligation
on the state to extend protective legislation to unprotected groups.

Several considerations circumscribe the possibility of challenging under inclusion under s. 2 of the Charter:
1. Claims of under inclusion should be grounded in fundamental Charter freedoms rather than in access to a particular
statutory regime;
2. The evidentiary burden in cases where there is a challenge to under inclusive legislation is to demonstrate that exclusion
from a statutory regime permits a substantial interference with the exercise of protected s. 2(d) activity; and
3. To link the alleged Charter violation to state action, the context must be such that the state can be truly held accountable
for any inability to exercise a fundamental freedom. The contribution of private actors to a violation of fundamental freedoms does
not immunize the state from Charter review.

Is this a Substantial and Pressing Concern?


• Yes. Evidence establishes many farms are family-owned and operated and they are threatened by large corporate farms.
The protection of family farms is a pressing objective to warrant infringement of s.2(d). Family farms should be protected, but to say
all agricultural workers are banned from the board fails at the minimal impairment test.
72

Rational Connection:
• Yes. There is a rational connection between the exclusion of agricultural workers from Ontario's labour relations regime and the
objective of protecting the family farm.
Minimal Impairment:
• No. The legislation is overbroad. The categorical exclusion of agricultural workers is unjustified where no satisfactory effort has
been made to protect their basic right to form associations. The exclusion is overly broad as it denies the right of association to every
sector of agriculture without distinction. There is no need to exclude all workers. It is not an effective response given the changing
nature of the industry.
Remedy:
• Declare s.3(b) of the LRA unconstitutional, suspended for 18 months, thereby allowing amending legislation to be passed if the
legislature sees fit to do so.

Test: Does the legislation target associational conduct because of its associational nature? S.2(d) includes:
• Negative right not to be interfered with (and the State’s duty to not interfere), and
• Positive right to associate or state’s positive duty/obligation to provide/pass protective legislation to ensure
associational rights (when there is a vulnerable group therefore with an inability to organize).
• Court will look for the state targeting or prohibiting of conduct taking the form of association. Sometimes inaction
on the part of the government will be included.
• Violation: violation where the government specifically targets associational activities and passes laws prohibiting
such but also where the government fails to protect certain types of associational activities. Government has a positive obligation to
protect agricultural workers. Not all workers can argue their exclusion from labour relations associations are entitled to government
protection. Groups must show evidence that the only ways they can be protected is through such association (evidence such as no
high education, etc.) and are therefore entitled to government assistance. If no evidence then no violation of s.2(d). There are still
internal limits such as the right to strike or right to collective bargaining.

Fundamental Justice Rights

• Common Issues:
• Who can claim protection under s.7? Everyone might suggest the protection extends to corporations or artificial beings, however
case law says the section applies to human beings only.
• Does a foetus have s.7 rights? So far, the SC has not definitively ruled on this. The Trembley case said the foetus does not have
rights under the Quebec Charter.
• Deliniation of the scope of s.7: The meaning of fundamental justice and how the scope and meaning interact.
• Violation of s.7: there must be a violation of life, liberty and security, along with a violation of the principles of fundamental
justice.
• Violations of s.7 will be difficult to justify under s.1, being demonstrably justified in a free and democratic society.
• Section 7 is different from the s. 2 freedoms in the Charter; s. 7 has been interpreted by the Court as having an internal limitation.
The analytical process is twofold:
1. Has there been a violation of either the right to life, liberty or the security of person?
2. Has there been a violation of the right to life, liberty, or security of person that does not accord with the principles of fundamental
justice?
• It is not good enough for the claimant to show that there right to liberty has been violated. The claimant must also show
that their liberty has been violated in such a way that is not in keeping with the principles of fundamental justice.

Section 7 and Administrative Procedure

Prior to the proclamation of s.7, the common law of administrative procedure supplemented statutory proceedings by creating procedural
rights for those potentially affected by the exercise of statutory power. The courts did this by providing for procedural rights where the
legislature was silent, or where the procedural scheme provided by the legislature was bare bones or incomplete. As supplementary
common law, the law of administrative procedure gave way to specific statutory specification of the procedure desired by the legislature,
even if that procedure was seemingly unfair or contrary to principles of fundamental justice. Now, after the proclamation of s.7, statutes
which create administrative power to impact on rights to life, liberty or security of the person now are subject to an overriding
constitutional imperative that the procedure be used in accordance with the principles of fundamental justice. This new framework includes
such matters as the right of a person potentially affected by the exercise of administrative power to notice of the proposed administrative
action, protection against administrative delay, a written or oral opportunity to comment before administrative action is taken, rights in
administrative proceedings to counsel, and to discovery and disclosure of the administrative authority's file, rights, as appropriate to
contest adverse evidence, rights against self incrimination in certain administrative proceedings, the duty of administrative tribunals to give
reasons in certain circumstances, and protection for those potentially affected by the exercise of administrative power against decisions by
biased tribunals. Now, statutes investing administrative entities with power to affect rights to life, liberty and security of the person can be
overturned or renovated under s.7. This does not mean that the rule of fair procedure worked out under the common law cease to operate.
Courts sitting under s.7 will take their major inspiration from the rules of administrative procedure worked out under the common law.
Where those rules fail to produce a fundamentally fair result, courts will find that the statutes responsible violate s.7.
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New Brunswick (Minister of Health and Community Services) v. J. G. – 1999 SC

Facts:

A’s three young children were placed in the care of the Minister of Health and Community Services of New Brunswick on November 12,
1993. On April 28, 1994 the Minister obtained an order under Part IV of the Family Services Act, granting him custody of the children for
a period of up to six months. On October 27, 1994, at the initial appearance of A, duty counsel appointed by the Minister of Justice to act
on her behalf advised the court that A intended to challenge the temporary custody application and therefore required a full hearing of the
matter. A applied to Legal Aid on November 1, 1994 and was advised the next day that her application was denied on the grounds that the
proceeding involved a custody application as, custody applications were not covered under the legal aid guidelines.

On November 2, 1994, A brought a motion for an order directing the Minister to provide her with sufficient funds to cover reasonable fees
and disbursements of counsel for the purposes of preparing for and representing her in the custody proceedings or in the alternative. She
also sought a declaration that the rules and policies governing the distribution of Domestic Legal Aid, as they differentiated between
applications for guardianship and applications for custody orders were contrary to s.15(1) and s.7. It was agreed by counsel that the best
interests of the children would be served by proceeding with the custody hearing on the originally scheduled date. Christie, who had been
appointed duty counsel for A and relieved of his role on November 8, 1994, agreed to represent A at the custody hearing pro bono. In June
of 1995, the children were returned to the care of A. On December 15, 1995, over a year after the appellant's motion was brought, it was
dismissed by Athey, J. A was granted leave to appeal. Her appeal was dismissed by the CA NB on March 14, 1997.

Issue:

Whether the custody hearing would have been sufficiently complex, in light of the other two factors, that the assistance of a lawyer would
have been necessary to ensure the appellant her right to a fair hearing? Yes.

Ratio: (Lamer, CJC)

A argued that the Minister of Health and Community Services' application to extend the order granting the Minister custody of her three
children threatened to deprive her of both her s.7 rights to liberty and security of the person. For a restriction of security of the person to be
made out, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state
interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable
sensibility. There is little doubt that state removal of a child from parental custody pursuant to the state's parens patriae jurisdiction
constitutes a serious interference with the psychological integrity of the parent. Besides the obvious distress arising from the loss of
companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is
subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as
unfit when relieved of custody. As an individual's status as a parent is often fundamental to personal identity, the stigma and
distress resulting from a loss of parental status is a particularly serious consequence of the state's conduct. Therefore, the Minister's
application to extend the original custody order threatened to restrict A’s right to security of the person.

While relieving a parent of custody of his or her child restricts the parent's right to security of the person, this restriction may nevertheless
be in accordance with the principles of fundamental justice. A fair procedure for determining whether a custody order should be extended
requires a fair hearing before a neutral and impartial arbiter. The parent must have an opportunity to present his or her case effectively. If
denied the opportunity to participate effectively at the hearing, the judge may be unable to make an accurate determination of the child's
best interests. Here, A’s right to a fair hearing required that she be represented by counsel. Of particular importance is the fact that the state
was seeking to extend a previous custody order by six months. A six-month separation of a parent from children is a significant period of
time. In proceedings as serious and complex as these, an unrepresented parent will ordinarily need to possess superior intelligence or
education, communication skills, composure, and familiarity with the legal system in order to effectively present his or her case. A needed
to be represented by counsel for there to have been a fair determination of the children's best interests. Without the benefit of counsel, A
would not have been able to participate effectively at the hearing, creating an unacceptable risk of error in determining the children's best
interests and thereby threatening to violate both A’s and her children's s.7 right to security of the person.

S.7 violations are not easily saved by s.1 for two reasons. First, the rights protected by s.7 are very significant and cannot ordinarily be
overridden by competing social interests. Second, rarely will a violation of the principles of fundamental justice, specifically the right to a
fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society. There are only two possible remedies
a judge can order under s.24(1) to avoid a prospective breach in circumstances where the absence of counsel for one of the parties would
result in an unfair hearing: an order that the government provide the unrepresented party with state-funded counsel, or a stay of
proceedings. A stay of proceedings is clearly inappropriate in this case, as it would result in the return of the children to A’s
custody. Children should not be returned to their parent's care when there is reason to suspect that they are in need of protection. The
government must provide A with state-funded counsel. If the parent wants a lawyer but is unable to afford one, the judge should next
consider whether the parent can receive a fair hearing through a consideration of the following criteria: the seriousness of the interests at
stake, the complexity of the proceedings, and the capacities of the parent. The judge should also bear in mind his or her ability to assist the
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parent within the limits of the judicial role. If the judge is not satisfied that the parent can receive a fair hearing and there is no other way to
provide the parent with a lawyer, the judge should order the government to provide the parent with state-funded counsel under s.24(1).

(L’Heureux-Dube, J.)

The rights in s.7 must be interpreted through the lens of s.15 and 28, to recognize the importance of ensuring that our interpretation of the
Constitution responds to the realities and needs of all members of society. A’s security of the person was implicated when the government
instituted proceedings to extend the existing custody order. Wardship proceedings implicate these fundamental liberty interests of
parents. The result of the proceeding may be that the parent is deprived of the right to make decisions on behalf of children and guide their
upbringing, which is protected by s.7. Though the state may intervene when necessary, liberty interests are engaged of which the parent
can only be deprived in accordance with the principles of fundamental justice. Whether the application is temporary or permanent should
not have a significant effect on whether the parent will be granted a right to counsel. Judges must be cognizant of this reality when
evaluating this factor in the circumstances of each particular case. Proceedings will in many cases be complex, and the consequences,
when the child may be removed from the home, are generally serious. Trial judges should not consider the issue from the starting point that
counsel will be necessary to ensure a fair hearing only in rare cases.

• Children subject to a temporary guardianship. Claimant is seeking to contest a second guardianship.


• Issue that the case could actually be moot. The claimant had finally obtained a pro bono lawyer. However, the court found the
issues to be significant enough to proceed.
• State Action: Child welfare legislation and legal aid’s policy decisions not to do child welfare cases.
• Issue: Whether there is a security of the person interest in this case? Yes. Psychological stress incurred from children being taken
away from the parent – state imposed. This should be viewed objectively. If the court found a violation of s.7 every time a parent is
deprived of their children through action of the state (wartime, prison examples), the state may be impaired.
• Issue: Is there any implication for this action being non-criminal? No. This can be viewed in an adjudication context. Security of
the person can extend beyond criminal law.
• Violation of liberty interests: Ability for parents to parent, educate, bring up, etc., their children when they are removed.
• Is this violation contrary to the principles of fundamental justice? The principle here includes the right to a fair hearing, which
includes the right to have a case presented effectively, which might require the state to provide an accused/claimant with counsel. This
depends on the case, how complex the proceedings are, as well as the state and competencies of the accused.
• Often, the longer a child is away from a parent, the more difficult it is to re-obtain custody. The mother did not have superior
capacities to direct her own hearing, so the state should have provided counsel for her. More often than not, the state will have to
provide counsel to people in a similar position.
• Court is using s.7 to impose a positive obligation on the state.
• Finding: Violation of the principles of fundamental justice because the litigant was not provided with counsel. Issue then becomes
whether this is a situation where the government can justify the violation under s.1.
• First, is there a limit prescribed by law? Is it one that flows through legislation or is it imposed by administrative action? The
court holds that they do not have to decide this because it is almost always difficult to justify a s.7 violation under s.1. Often the
interests under s.7 cannot be overridden by competing social interests. (See Therens case for limits prescribed by law)
• Issue cannot be justified under s.1.

Gosselin v. Quebec (AG) – 2001 SC

Facts:

Gosselin, at the relevant period, was under 30 and received welfare benefits from the province of Quebec. In 1984, the Quebec
government altered its existing social assistance scheme in an effort to encourage young people to get job training and join the labour
force. Under the scheme the base amount payable to welfare recipients under 30 was lower than the base amount payable t those 30 and
over. If people under 30 participated in these programs they could receive the same level of payment that people over 30 received.
Gosselin had tried to participate in these programs but she dropped out because of personal problems and personality traits. She is seeking
compensation for herself and over 75,000 unnamed class members. On her submission this would mean that the government would be
forced to pay $389 million in benefits plus interest.
Issue:

Did s. 29(a) of the regulation infringe s. 7 of the Charter on the grounds that it deprived those to whom it applied of their right to security
of the person contrary to the principles of fundamental justice?

• Argues that the age cut off infringes s.15 and s.7.
• Claiming on her own behalf, as well as on the behalf of others who have been affected by this issue.
• Court found no violation of s.7 or s.15.
• Section 7:
• Two part test: Prove a violation of life, liberty and security of the person, as well as a violation of the principles of fundamental
justice.
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• One of the hurdles the claimant faces is that most cases before s.7 are protected by a non-interference right. A case on adequate
welfare benefits is not a case the court is prepared to deal with at this time. At this time, s.7 does not include the protection of
economic interests.
• Court will not necessarily restrict s.7 claims to cases of state or administrative action. To interpret s.7 narrowly would close the
door on the evolution of s.7. However, economic rights and an argument that the state should be required to supply a person with
what would fulfill economic rights, are issues
• This case did not have sufficient evidence that would support Gosselin’s claim of suffering, even though she was getting marginal
welfare support and did not have enough to support her self.

• Legislation at issues was Quebec legislation that provided additional benefits to people of low income under the age of 30 if they
took certain programs first. Full benefits were given to persons over the age of 30. Gosselin claims discrimination on the grounds of
age and receipt of welfare.
• Court was unwilling to interpret security of the person to include a positive obligation on the state to provide benefits.
• Test from Law v. Canada – Court focuses on essential human dignity and whether it has been violated.
• Pre-existing Disadvantage: Age has traditionally not been associated with discrimination, but is a good way to order society.
Young people are a relatively advantaged group. Court refuses to take judicial notice of discrimination of young people based on
age.
• Correspondence between differential treatment and needs and capacities of the claimant: Youth are in a better position to
obtain employment. Their autonomy and worth are enforced by the legislation, as it promotes their ability to obtain employment.
o Argued that there were too few places in the employment programs anyway. However, this was not found by the trial
judge, so could not be accepted as evidence.
• Ameliorative Purposes or Effects: Legislation was designed to benefit a differently disadvantaged group; welfare recipients over
30. The court decides they are not the appropriate means to decide the correct level of support.
• Nature and Scope of Interest Effected: No evidence how many people were effected, but there is evidence of a positive impact
on young people (job training, promotion of worth and autonomy, etc.) So, there has been no discrimination.

Godbout v. Longueuil (City) – 1997 SC

Facts:

Godbout was a municipal employee and was required to live in the municipality in which she worked. Sometimes subsequent to that she
moved to a neighboring town and her employment was terminated. She is making an argument that this requirement to live in the city is
violating her liberty interest under s. 7 of the Charter.

Issue:

Does the liberty right guaranteed under s. 7 include the right to chose where one wants to live?

• City had a law that municipal employees had to reside within the city. The claimant lived in the city when she was employed, but
she moved and her job was terminated.
• Liberty interests should be seen as protecting a person’s interest of where they want to live. It is a fundamental personal decision
that could affect a person’s life, may be based on social or economic standing, etc.
• The city took the decision away from the individual and told them where they had to live.
• Is there a violation of the principles of fundamental justice? The principle is said to be the balance between state interests and
individual personal interest. The court says this is a basic tenant of the legal system. The state interest here is not enough to override
the interests of the individual.
• Case is decided under the Quebec charter.
• Liberty is more than freedom from physical restraint, also personal autonomy, personal life, matters that by their nature implicate
basic choices going to the core of what it means to enjoy basic independence. There must be a right of privacy and also a right to
determine where one will live.
• Conception of liberty = beyond mere physical constraint but falls short of unlimited.

Equality Rights

Section 15
• S.15(1) applies to individuals, not artificial entities such as corporations.
• Lists several protected grounds (in particular) but there are also analogous grounds such as sexual orientation that can be read in.
• S.15(2) does not preclude laws put in place to ameliorate disadvantaged groups. This is generally used as a tool to interpret (1).
• S.32(2) provides that s.15 did not come into force until three years after the Charter was ratified, thus giving the government time
to correct legislation.
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Purpose of s.15(1)
• To ensure equality in the formulation and application of the law
• To protect against oppression resulting from discriminatory measures which have the force of law
• Instantiates a desire to rectify and prevent discrimination against particular groups suffering social, political and legal
disadvantage in our society.
• To prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping or political
or social prejudice, and to promote a society in which all persons enjoyed equal recognition at law as human beings or as members of
Canadian society, equally capable and equally deserving of concern, respect and consideration.

Who has rights under s.15(1)?


• Every individual
• Does not include corporations- wording was deliberately chosen
• Corporations can rely on s.15 rights of others if corporations could argue that they shouldn’t be convicted of a law that violated
s.15
• Corporations may be able to get standing, but they would be arguing on the rights of an individual (natural person) rather than that
their own s.15 rights had been violated

Analysis
1) Threshold Requirement – the alleged discrimination must be the result of the application or operation of law. The meaning of law in
this context includes statutes and regulations as well as all govt exercise of statutory discretion.
2) Does the law treat differentially? – Does the impugned law:
(a) Draw a formal distinction between the claimant and others on the basis of one or more personal characteristics
Direct discrimination: Where a law on its face draws a distinction between the claimant & others based on their personal
characteristic; or
(b) Fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively
differential treatment between the claimant and others on the basis of one or more personal characteristics? (resulting in
substantial inequality) Facially neutral laws may be discriminatory.
Indirect or Adverse Effects Discrimination: Where law doesn’t draw distinctions on its face but where the failure to take into
account different needs results in inequality. In deciding what the appropriate comparator group is:
1. Start with whatever claimant sees himself as being having been differentiated from
2. Court will also look at the subject matter & purpose/effect of legislation, historical and sociological similarities and
dissimilarities between different groups of people
3) Does it treat them differentially based on a personal characteristic? (immutable personal characteristics) Claimant must show
that the denial constitutes a discrimination on the basis of one of the enumerated grounds listed in s.15(1) or one analogous thereto.
Enumerated grounds in s.15 are legislative markers of suspect grounds associated with discrimination – indicators of discrimination (not
the only indicators)
• To be considered analogous, one must look for grounds of distinction that are like the grounds enumerated in s.15(1). These
grounds have in common the fact that they 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. Must show that
differential treatment has the potential to affect human dignity.
• If newly analogous grounds: must explain why analogous. Look at the purpose of s.15(1), the nature and situation of the
individual or group at issue, and the social, political and legal history of Canadian society’s treatment of the group
• Once found to be an analogous ground, remains an analogous ground for future cases without having to go through analysis
again.
4) Purpose or Effect to discriminate substantively: in a manner that violates essential human dignity
• Whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon
others, or of withholding or limiting access to benefits or advantages that are available to others
• Whether the differential treatment reflected the stereotypical application of characteristics, or which had the effect of
perpetuating or promoting the view that the indiv was less capable or worthy of recognition or value
• Contextual factors which determine whether legislation has the effect of demeaning a claimant’s dignity must be construed and
examined from the perspective of the claimant. Relevant point of view is that of reasonable person in circumstances of the claimant
• Some important contextual factors influencing whether s.15 has been infringed (don’t require all):
A) Pre-existing disadvantage, stereotyping, prejudice or vulnerability experienced by the individual or group at issue. Not all
laws that draw distinctions will amount to discrimination. Important purpose of s.15 is to protect individuals or groups who are
vulnerable, disadvantaged, or members of discrete and insular minorities.
B) The correspondence, or lack thereof, between the grounds on which the claim is based and the actual need, capacity, or
circumstances of the claimant or others. It will generally be more difficult to establish discrimination to the extent that the law takes into
account the claimant’s actual situation in a manner that respects his value as a human being or member of Canadian society.
C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. This factor
is more relevant where the s.15 claim is brought by a more advanced member of society. However, can’t use this factor to argue that
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exclusion of another disadvantaged group from legislation which is designed to ameliorate disadvantage is permissible.
D) The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the
legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory
within s.15. Look at the actual benefit that is being deprived => some will be more important than others
Burden on Claimant
• Although the s.15(1) claimant bears the onus of establishing an infringement, it is not necessarily the case that he claimant must
adduce evidence to show a violation of human dignity or freedom. Frequently, it will be evident on the basis of judicial notice and
logical reasoning.

Law v. Canada (Minister of Human Resources Development) – 1999 SC

Facts:

CPP is a compulsory social insurance scheme which provides contributors and their families with income upon the retirement, disability or
death of the wage earner. Among the benefits available is the survivor's pension. A claimant over the age of 45 at the time of the
contributor's death, or is maintaining dependent children of the contributor, or is disabled, is entitled to receive the survivor's pension.
However, s.58 gradually reduces that pension for able-bodied surviving spouses without children who are between the ages of 35 and 45
by 1/120th of the full rate for each month that the claimant's age is less than 45 years at the time of the contributor's death. Pursuant to s.
44(1)(d), able-bodied surviving spouses without children who are under 35 at the time of the death of the contributor are precluded from
receiving a survivor's pension until they reach 65. A’s husband died in 1991, having contributed to CPP for 22 years. A was 30 years
old. Prior to Law's death, the couple had owned a small business, which failed soon after Law's death. A applied to receive survivor's
benefits. Her application was refused because she was under 35 years old, she was not disabled, and she did not have children.

Issue:

Whether the age distinctions drawn by s.44(1)(d) and 58 of CPP impose a disadvantage upon A as a younger adult in a manner which
constitutes discrimination under s.15(1)? No.

Ratio: (Iacobucci, J.)

The purpose of s.15(1) is to prevent the violation of human dignity and freedom through disadvantage, stereotype, or political or social
prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members society, equally
capable and equally deserving of concern, respect and consideration. The object of a s.15(1) analysis is to determine whether the impugned
legislation creates differential treatment between the claimant and others on the basis of enumerated or analogous grounds, which results in
discrimination. Both the purpose and the effect of the legislation must be considered in determining the appropriate comparison
group or groups. The determination of the appropriate comparator and the evaluation of the contextual factors which determine whether
legislation has the effect of demeaning a claimant's dignity must be conducted from the perspective of the claimant. The focus of the
discrimination inquiry is both subjective and objective: subjective in that the right to equal treatment is an individual right, asserted by a
claimant with particular traits and circumstances; and objective in that it is possible to determine whether the claimant's equality rights
have been infringed by considering the larger context of the legislation in question, and society's past and present treatment of the claimant
and of others with similar characteristics. The relevant point of view is that of the reasonable person, dispassionate and fully apprised
of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant. It is inappropriate to
attempt to confine analysis under s.15(1) to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is
to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a
formalistic or mechanical approach. There are three central issues:

1. Whether a law imposes differential treatment between the claimant and others, in purpose or effect.
2. Whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment.
3. Whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

A court should make the following three broad inquiries:

1. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal
characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in
substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
2. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
3. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner
which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of
perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a
member of Canadian society, equally deserving of concern, respect, and consideration?

Four contextual factors:


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1. Pre-existing Disadvantage

To the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics or
circumstances, persons like him or her have often not been given equal concern, respect, and consideration. It is logical to conclude that,
in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will
have a more severe impact upon them, since they are already vulnerable. A stereotype may be described as a misconception whereby a
person or, more often, a group is unfairly portrayed as possessing undesirable traits, or traits which the group, or at least some of its
members, do not possess. Any demonstration by a claimant that a legislative provision or other state action has the effect of perpetuating
or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of
Canadian society (whether or not it involves a demonstration that the provision or other state action corroborates or exacerbates an existing
prejudicial stereotype), will suffice to establish an infringement of s.15(1). The s.15(1) claimant is not required to establish membership in
a sociologically recognized group in order to be successful. An infringement of s.15(1) may be established by other means, and may exist
even if there is no one similar to the claimant who is experiencing the same unfair treatment.

2. Relationship Between Grounds and the Claimants Characteristics or Circumstances

Some of the enumerated and analogous grounds have the potential to correspond with need, capacity, or circumstances. Examples are
disability, sex, age, etc. As a general matter, legislation which takes into account the actual needs, capacity, or circumstances of the
claimant and others with similar traits in a manner that respects their value as human beings and members of Canadian society
will be less likely to have a negative effect on human dignity. The focus must always remain upon the central question of whether,
viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human
dignity. It will be easier to establish discrimination to the extent that the legislation fails to take into account a claimant's actual situation,
and more difficult to establish discrimination that legislation properly accommodates the claimant's needs, capacities, and circumstances.

3. Ameliorative Purpose or Effects

The purpose of s.15(1) is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to
ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society. An
ameliorative purpose or effect which accords with the purpose of s.15(1) will likely not violate the human dignity of more advantaged
individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different
circumstances experienced by the disadvantaged group being targeted by the legislation. Under-inclusive ameliorative legislation that
excludes from its scope the members of a historically disadvantaged group will rarely escape the charge of discrimination.

4. Nature of the Interest Affected

If all other things are equal, the more severe and localized the consequences on the affected group, the more likely that the distinction
responsible for these consequences is discriminatory. Other factors which may be referred to by a claimant in order to establish an
infringement of equality rights in a purposive sense may be found in previous decisions. An infringement of s.15(1) exists if it can be
demonstrated that, from the perspective of a reasonable person in circumstances similar to those of the claimant who takes into account the
contextual factors relevant to the claim, the legislative imposition of differential treatment has the effect of demeaning his or her dignity.

Although the claimant bears the onus of establishing an infringement in a purposive sense through reference to one or more contextual
factors, it is not necessarily the case that the claimant must adduce evidence in order to show a violation of human dignity or freedom.
They do not have to bring anything that is beyond their knowledge. Where differential treatment is based on one or more enumerated or
analogous grounds, this will be sufficient to found an infringement of s.15(1) in the sense that it will be evident on the basis of judicial
notice and logical reasoning that the distinction is discriminatory within the meaning of the provision.

Surviving spouses of all ages are vulnerable, economically and otherwise, immediately following the death of a spouse. However, the
purpose and function of the CPP provisions is not to remedy the immediate financial need experienced by widows and widowers, but
rather to enable older widows and widowers to meet their basic needs during the longer term. Yes, the law imposes a disadvantage on
younger spouses in this class. But it is unlikely to be a substantive disadvantage, viewed in the long term. The differential treatment
does not reflect or promote the notion that they are less capable or less deserving of concern, respect, and consideration, when the dual
perspectives of long-term security and the greater opportunity of youth are considered. The law functions not by the device of stereotype,
but by distinctions corresponding to the actual situation of individuals it affects. By being young, A has greater prospect of long-term
income replacement. Older surviving spouses, like surviving spouses who are disabled or who care for dependent children, are more
economically vulnerable to the long-term effects of the death of a spouse. Parliament's appears to have been to allocate funds to those
persons whose ability to overcome need was weakest. A is more advantaged by virtue of her young age. She is challenging the validity of
legislation with an egalitarian purpose and function whose provisions correspond to a very large degree with the needs and circumstances
of the persons whom the legislation targets. There are no other factors suggesting that her dignity as a younger adult is demeaned by the
legislation, either in its purpose or in its effects.

• Approach to s.15 analysis: Purposive and contextual. What implication does it have for human dignity and freedom?
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• Discrimination must be on a substantive ground, rather than one of formal equality.


• Can only speak of equality or discrimination by comparing the complainant to another group in Canada and the benefits they
enjoy. S.15 doesn’t create an obligation on the state to create some benefit program. However, any program existing cannot
discriminate.
• Subjective/Objective Test: Discrimination on a personal level, as well as on a reasonable level. Purely subjective could lead to a
slippery slope in claims and purely objective could lead to an eradication of the standard of human dignity.
• Decision is more about guidelines; it is not meant to be a strict test (although the court actually does apply it as a strict test.)
• Even though there was discrimination on a protected ground, the claimant has not been demeaned.

Lovelace v. Ontario – 2000 SC

Facts:

First Nations bands approached Ontario for the right to control reserve-based gaming activities. The profits were to be used to provide an
economic base for self-government activities. A represents Métis and non-status Indians; Aboriginals not registered as Bands under the
Indian Act. All of the groups have members who have or are entitled to registration as individual "Indians" pursuant to the Act; however,
as communities the groups are non-status since they are not registered as Indian "bands" and do not have reserve land. In 1992, the OMAA
developed a Métis Gaming Commission to promote gaming as a source of revenue for self-reliance initiatives. OMAA specifically
requested its own commercial casino licence. Ontario advised the OMAA that, since commercial gaming was only in a pilot phase, the
province was not in a position to negotiate further casino projects. Ontario entered into an agreement with Ontario's Bands to develop a
commercial casino on the Rama First Nation Reserve. The purpose of the project is to improve the poor socio-economic conditions of
bands registered under the Indian Act. In 1996, A was informed that the proceeds were to be distributed only to communities registered as
bands. A applied for a declaration that they are entitled to share in the profits of Casino Rama. The motion judge granted A’s application
ruling that Ontario's refusal to include these groups (1) violated s.15 of the Charter in a manner not justifiable under s.1; (2) s.15(2) of the
Charter could not be invoked as a defence to the s.15(1) violation; and (3) Ontario's actions violated s.91(24) of the Constitution. The CA
set aside the decision, finding that (1) since the main object of the casino project was to ameliorate the social and economic conditions of
bands, it was authorized by s.15(2) of the Charter; and (2) the exercise of spending power by a province is not ultra vires the Constitution.

Issue:

Whether the First Nations Fund's under-inclusiveness violates the appellants' equality rights as guaranteed by s.15 of the Charter? No.

Ratio: (Iacobucci, J.)

The s.15 analysis requires that the determination of a discrimination claim be grounded in three broad inquiries. First, examine whether
the law, program or activity imposes differential treatment between the claimant and others. Second, establish whether this differential
treatment is based on one or more enumerated or analogous grounds. Third, ask whether the impugned law, program or activity has a
purpose or effect that is substantively discriminatory. The main focus of the inquiry is to establish whether a conflict exists between the
purpose or effect of an impugned law and the purpose of s.15(1). The question to be asked is whether a "reasonable person in
circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim", the law has the effect
of demeaning a claimant's human dignity. There are four contextual factors which provide the basis for organizing the third stage of the
discrimination analysis:

1. Pre-existing disadvantage, stereotyping, prejudice, or vulnerability.


• A is not required to establish that they are more disadvantaged than comparator groups, although all aboriginal peoples have
been affected by stereotyping and prejudice.
• Disadvantages include a vulnerability to cultural assimilation, a compromised ability to protect their relationship with
traditional homelands, lack of access to culturally-specific health, educational, and social service programs, and a chronic pattern
of being ignored by government.
• These disadvantages have been exacerbated by continuing unfair treatment perpetuated by the stereotype that they are "less
aboriginal", with the result that they are generally treated as being less worthy of recognition, and viewed as being disorganized
and less accountable than other aboriginal peoples.
• A has failed to establish that the Fund functioned by stereotype. Instead this distinction corresponded to the actual
situation of individuals it affects, and the exclusion did not undermine the ameliorative purpose of the targeted program.
The Fund does not conflict with the purpose of s.15(1) and does not engage the remedial function of the equality right.

2. Correspondence, or lack thereof, between the ground on which the claim is based and the actual need, capacity, or circumstances
of the claimant or others.
• The needs of A correspond to the needs addressed by the program, for both A and R face the same social problems.
• However, A has very different relations with respect to the land, government, and gaming from those anticipated by the
casino program. Although A is not subject to statutory strictures on land use, they do not have the land-base anticipated by the
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program. These aboriginal communities are of a dispersed nature and do not hold title to a land-base identifiable as an aboriginal
community centre.
• The submissions put forward by A do not serve to diminish the degree of required correspondence. These communities
are seeking recognition and self-government in concert with band communities.

2. Ameliorative purpose or effects of the impugned law, program or activity upon a more disadvantaged person or group in society
• Where the ameliorative purpose or effect of such a program accords with the purpose of s.15(1), the exclusion will likely
not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely
corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the
legislation.
• It is appropriate to extend the ameliorative purpose analysis to situations where disadvantage, stereotyping, prejudice or
vulnerability describes the excluded group or individual.
• The focus of analysis is not the fact that A and R are equally disadvantaged, but that the program in question was
targeted at ameliorating the conditions of a specific disadvantaged group rather than at disadvantage potentially
experienced by any member of society. This is a targeted ameliorative program which is alleged to be under-inclusive,
rather than a more comprehensive ameliorative program alleged to be under-inclusive.
• The Fund will provide bands with resources in order to ameliorate specifically social, health, cultural, education, and
economic disadvantages. The aspect of the Fund is consistent with the related ameliorative purpose of supporting the bands in
achieving self-government and self-reliance.
• Both of the above ameliorative objectives can be met while, at the same time, ensuring that on-reserve commercial
casino gaming is undertaken in compliance with the strict regulations applicable to the supervision of gaming activities.
• The Fund has a purpose that is consistent with s.15(1) and the exclusion of A does not undermine this purpose since it is
not associated with a misconception as to their actual needs, capacities and circumstances.

3. Nature and scope of the interest affected by the impugned government activity.
• Claims of A: The exclusion from the Fund results in severe and localized economic and social consequences. The
conferral of this benefit relates to a more constitutionally related interest in building self-reliant and recognized self-governing
communities. The severe and localized economic interest is interwoven with a compelling interest in a fundamental social
institution, namely recognition as self-governing aboriginal communities.
• It cannot be determined how the targeted arrangement and circumstances surrounding the Fund, including the special
characteristics of First Nations bands, results in any lack of recognition of A as self-governing communities. This is remote.

The fact that identical treatment may frequently produce serious inequality is recognized in s.15(2), which states that the equality rights in
s.15(1) do "not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or
groups. There are two competing approaches to understanding the application of s.15(2) and its relationship with s.15(1). On the
one hand, s.15(2) is regarded as an interpretive aid to s.15(1); providing conceptual depth and clarity on the substantive nature of
equality. On the other hand, s.15(2) is seen as an exemption or a defence to the applicability of the s.15(1) discrimination analysis.
The plain meaning of the language in these subsections is consistent with the view that s.15(2) is confirmatory and supplementary to
s.15(1). The s.15(2) phrase "does not preclude" cannot be understood as language of defence or exemption. Rather, this language
indicates that the normal reading of s.15(1) includes the kind of special program under review in this appeal. S.15(2) is referenced
to the s.15(1) subsection and there is no language of exemption; on its face s. 15(2) describes the scope of the s. 15(1) equality right.
S.15(2) also acts as an interpretive aid to s.15(1) that such an interpretation ensures the internal coherence of the Charter as a working
statute. Treating s.15(2) as an exception or defence would render s.1 redundant. Claimants arguing equality claims in the future should first
be directed to s.15(1) since that subsection can embrace ameliorative programs of the kind that are contemplated by s.15(2). By doing that
one can ensure that the program is subject to the full scrutiny of the discrimination analysis, as well as the possibility of a s.1 review.

• Distinguished from M v. H in several ways:


1. The scheme is not a general benefit conferring scheme, but rather something targeted to help a specific groups. In M v.
H, the court held that the legislation operated on the basis of certain assumptions that who was in need or a particular benefit and
discriminated against gay and lesbian couples needing the benefits.
2. This case deals with a policy choice or government program, rather than a conflict within legislation.
3. M v. H dealt with private benefits whereas this case would deal with public money.
• Differential Treatment: Métis and non-status Aboriginals not identified as “Indians” under the Indian Act are excluded from the
ability to have a gaming license. Indian status under the Indian Act is an analogous ground of protection; analogous to the enumerated
status of ethnic origin.
• Stereotype and Disadvantage: General proposition that Aboriginals suffer prejudice, but even more so for these particular
Aboriginals because they do not have some of the benefits conferred by the Indian Act. At the same time, while this is true as a general
proposition, the actual agreement doesn’t operate on the basis of stereotyping. Court also does not want to decide which group is more
disadvantaged in this case.
• Needs, Capacities and Circumstance of the Group: Recogised Aboriginal groups and the appellant groups have very different
needs/usages for lands, as well as differences in land ownership. They also have a different approach to self government and are at a
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different stage of achieving self government. The government is not ignoring A’s needs, but is targeting the needs of the status first
nations groups with this particular program. A is not in the same position to benefit from this particular program.
• Critique: Is it fair to assume that A is not in the same position or does not suffer the same prejudices as the status groups? Where
do the differences come from? The Indian Act. How can the court rely on the Act when it is so problematic and discriminating?
• Ameliorative Purpose: This is a targeted program for a specific purpose.
• Nature of the Interest Affected: It may have a negative impact on A, but that is because they don’t have the same attributes as
the targeted group. It is not really the sort of Charter violation (s.15 Differential Treatment) that gives rise to a violation.
• Section 15(2): Can be used as a government defence as well as an interpretive aide. The court prefers the latter. When a program
is put in place to support a disadvantaged group, s.15(2) will support that this type of program does not discriminate or create
differential treatment that would violate the Charter.
• Supporting a substantive equality approach to s.15. S.15(2) works against the doctrine of formal equality.

Equal Benefit of the Law and Under-inclusive Statutory Regimes

Schachter makes clear that where government decides to provide a benefits program, the program will be subjected to the discipline of
Charter-based equality rights. The program may not deny eligibility for benefits on a discriminatory basis and it will have to accommodate
the needs of disadvantaged groups. Otherwise, s.15 will be violated. The equality violation results directly from the under-inclusiveness of
the benefits program. In appropriate situations of under-inclusive statutory regimes, Courts have power to remedy the equality violation by
making the excluded group entitled to the statutory benefit.

Lovelace outlines a scenario where under-inclusiveness may be permissible. Lovelace made clear that s.15 was to be interpreted in a
purposive and contextual manner so as to give effect to its remedial purpose, namely, to protect against the violation of essential human
dignity. It went on to unequivocally state that the s.15(1) scrutiny also applied just as powerfully to targeted ameliorative programs. The
Court recognized that there may be instances of other programs where the potential program beneficiaries were not universal, but restricted
by unique circumstances; equality would be furthered by an ameliorative programs tailored toward those special needs. Thus, a program
that corresponded to the actual situation of those individuals and defined them as a class uniquely entitled to program benefits, would not
be vulnerable to a s.15(1) attack since under-inclusiveness would be acceptable in these circumstances. This is particularly true when the
excluded individuals are deemed to be more advantaged than those targeted by the legislation.

Aboriginal Rights
- Charter shall not be construed so as to abrogate or derogate from any aboriginal or treaty right
- Interpretive provision – other sections in Charter should not be interpreted in a way that detracts from aboriginal rights

Section 35
(1) The existing aboriginal and treaty rights of aboriginal peoples are hereby recognized and affirmed
(2) Aboriginal Peoples is defined to include Indian, Inuit and Metis
(3) Treaty rights includes rights that now exist by way of land claims agreements or may be so acquired. Treaty rights that arise
subsequent to the enactment of Constitution Act, 1982, will be boudn by this provision
(4) Guaranteed equally to male and female persons

Effect of s.35
- Outside of Charter, and so not subject to s.33 override. Doesn’t look like s.32 or s.24 remedies apply either. Would have to rely on
s.52 remedy
- SCC has now clearly stated that s.35 did not entrench the restrictions in federal & provincial legislation to the detriment of the rights
mentioned in the section. As long as some vestige of the right was in existence in 1982, it received constitutional protection [Guerin]
[Sparrow]
- The intention of Parliament to restrict aboriginal or treaty rights must be clearly expressed and justified on the basis of compelling
and substantial objectives [Gladstone]
- With aboriginal & treaty rights now protected by the Constitution, it is doubtful that Parliament would be able to extinguish these
rights through ordinary legislation, although it could have been done before 1982
- Consent of the aboriginal peoples affected is required before a treaty can be altered [Sioui]
- Any limitations restricting the rights of Indians under treaties must be narrowly construed [Badger]
R v. Sparrow – 1990 SC
82

Facts: A member a native band was charged under the Fisheries Act for using a net that was larger than that
provided for in the license provided to the band. The accused argued this violated his aboriginal rights under s.
35(1).
Ratio:

- S.35 does not mean that aboriginal and treaty rights will always prevail over conflicting laws. They are constitutionally
protected, but only to a point. Case introduced the idea that govts may ‘regulate’ the exercise of aboriginal rights
- Aboriginal rights stem from the traditional use and occupancy of lands by aboriginal peoples. Aboriginal rights in relation to
certain activities have been recognised since earliest contact and have continued up to the present day
- Treaty rights are those described in treaties or modern land claims agreements with aboriginal peoples. Treaties should be liberally
construed by the courts and doubtful expressions resolved in favour of the aboriginal peoples [Nowegijick, 1983]
- Existing rights
a) Rights that were in existence in 1982 but does not revive rights extinguished prior to 1982.
b) The phrase ‘existing aboriginal rights’ must be interpreted flexibly so as to permit their evolution over time. The rights now
protected are not simply carbon-copies of those that existed in the distant past. Nor is an existing right under s.35(1) read so as to
incorporate the specific manner in which it was regulated before 1982. In other words, the right is not merely what is left over after all
regulations are taken into account.
- Extinguishing rights
a) Prior to 1982 – consent of aboriginal wasn’t needed. However, Crown’s intention to extinguish must have been ‘clear and
plain’
b) After 1982 – consent of rights-holders required
- Recognised and affirmed. The affirmation of aboriginal rights contained in s.35(1) requires a ‘generous, liberal interpretation of the
words in the constitutional provision’.
- Aboriginal rights not absolute. Aboriginal and treaty rights that are not recognised and affirmed are not absolute. Federal
legislative powers in respect of aboriginal peoples continue. However, in the exercise of these powers the federal govt must honour its
duty to aboriginal peoples. Therefore, laws that infringe aboriginal or treaty rights must be justified by the government. Government
will be held to a high standard of honourable dealing.

~ Test which any federal legislation must meet when it seeks to restrict aboriginal rights or treaty rights
1) STEP 1 – Is there an existing aboriginal or treaty right involved? The aboriginal party must establish that a particular aboriginal
or treaty right claimed by them actually exists. Must show it was an integral part of culture and that it has not been extinguished => see
Van Der Peet
2) STEP 2 – Has the aboriginal or treaty right been infringed? The aboriginal party must show, prima facie, that the legislation in
question places an adverse restriction on the right. At this stage, the Court will examine questions such as:
a) What are the characteristics or incidents of the right? (The courts must be sensitive to the aboriginal perspective on the meaning
of the right)
b) Is the limitation reasonable?
c) Does the legislation impose undue hardship?
d) Does the legislation deny the holders of the right their preferred means of exercising the right?
3) STEP 3 – Is the legislation justified? The federal govt has the onus of justifying its legislation where an adverse impact on a right
is created. At this stage the courts will examine questions such as:
a) Is there a valid legislative objective such as conservation or public safety? There must be something more to the objective than
mere “public interest”
b) Means – was the Crown acting honourably and in keeping with their fiduciary duty? The special trust relationship and
responsibility of the federal govt for aboriginal peoples must be the first consideration in determining whether the legislation is justified
c) Has there been as little infringement as possible in order to effect the desired result of the legislation?
d) If expropriation occurs has fair compensation been paid?
e) Has the aboriginal group been consulted?
f) Ws the aboriginal group given priority in terms of their ability to access or utilise their resource over non-aboriginal people?
g) In assessing justification, are there any other factors to be considered in the circumstances of the case?
 must be something more specific and compelling than some vague notion of govt acting in public interest

Reasons: Section 35 guarantees those aboriginal and treaty rights that were in effect in 1982 (those aboriginal and treaty rights that were not extinguished
by the Crown.) Simple regulation by the government does not mean that aboriginal rights have been extinguished. The Crown must clearly prove that the
government intended to extinguish the right claimed by aboriginal people. If mere regulation was enough to extinguish aboriginal rights we would end up
with a patchwork of aboriginal rights across the country.
• Prior to 1982 the government could extinguish aboriginal rights through legislation.
83
• Post 1982 the government cannot simply be any of legislation extinguish aboriginal or treaty rights. They can only do so through surrender by
the aboriginal people themselves (e.g. land settlement or treaty) or they could do so through Constitutional amendment. The Nishka treaty is an
example of an aboriginal group giving up a portion of their aboriginal rights for other rights.
What is the scope of the right in question? What is the scope of “aboriginal rights”? The natives in this case are claiming the right to fish for food, for
ceremonial purposes and social purposes. They are not claiming the right to fish for commercial purposes.
• Pamejewan – an aboriginal group claimed the right to establish gaming on their reserve based on the aboriginal right to self government. The
court did not find that the aboriginal group had any right to conduct gaming.
• The court looks narrowly and specifically at the actually right being claimed.
The court finds that fishing was an integral part of their distinctive culture and as such an aboriginal right to fish could be claimed by Sparrow.
• This has become the test for aboriginal rights under s. 35.
Aboriginal rights like other rights should be interpreted generously and purposely. Aboriginal rights however must be interpreted in a way that recognizes
the fiduciary relationship between aboriginal peoples and the government. (Guerin) Section 35 is outside the Charter and as such s. 1 does not apply.
However, the wording “recognized and affirmed” does not suggest that aboriginal rights are absolute. This suggests that the government is conferring
these rights on aboriginal people – this allows the government to justify why the rights should not prevail in the circumstances of the case:
1. Valid Objective
2. The means used in enacting the law are appropriate: they must be means that uphold the honor of the Crown in keeping with the unique
relationship.
Here, the Court sent the matter back for trial for lack of evidence.
Ratio: TEST for aboriginal rights:
1. Is their a violation of the right?
• scope of the right
• violation (burden here is on claimant)
Was the right extinguished prior to 1982? (Burden on the government)
2. Justification – burden on the government. The court will look at the objective and the means used by the government.
1. The objective must be compelling and substantial – e.g. resource conservation, protection of the public, protection of other
aboriginals, etc. Public interest is too broad and vague for the court to rely on it as a justification.
2. The determination of the means used by the government is based on the honor of the government. Did they infringe the right as
minimally as possible? Was the group compensated if a case of expropriation? Was the aboriginal group consulted before the right
was taken away? Was the aboriginal group given priority over the rights of non-aboriginal people? This is not a closed list of factors.
NOTE: The cases subsequent to Sparrow have substantially narrowed aboriginal rights claims.
• Van der Peet: We will consider matters to be aboriginal rights where they are activities or traditions that are an integral part of their
distinctive culture and they must have engaged in that activity before colonization and it must be integral to the culture today. For a matter to be
integral it must be a defining characteristic of that aboriginal society (this is a very high standard.) The specific practice in question must be
examined, not the general claim of self government. This case resulted in a lot of criticism most of which centered on the argument that this
froze aboriginal rights in the past.
• The woman in Van der Peet was claiming a commercial right to fish but the court said any trade that the people had engaged in was secondary
to fishing conducted for sustenance. This case didn’t even get to the justification stage because the court found there was no aboriginal right to
fish for trade (only sustenance).
• Gladstone: dealt with the justification stage of analysis. In terms of justification the court will continue to find that conservation aims are a
compelling and substantial objective. The government will also be able to justify the infringement where the government is trying to recognize
non-aboriginal peoples involved in the fishery (balancing between aboriginal and non-aboriginal rights.) The court does not have to give
aboriginal people exclusive priority over the resource – it is okay for the government to allocate the resource between aboriginal and non-
aboriginal peoples. This is particularly so in the case of commercial fishing. There was insufficient evidence and the matter was sent back to
trial.
The court isn’t happy to have to deal with these cases – they feel the better resolution would be for the government and the aboriginal group to negotiate
and settle the matters themselves.
• The court uses a citizens plus model rather than a nation model.
These cases result in strong splits in the court

Class
o There has to be prima facie infringement of an Ab right
a) Burden is on the pl to show the scope of right (s.35) is integral to the distinctive culture of that particular group  looks at
constitution
b) Extinguishment
 Clear and plain intent to extinguish right
c) Prima facie infringement – looks at legislation
 Unreasonable?
 Undue hardship?
 Preferred means of exercising right?
o Justification- burden on the Crown
 Even if there is prima facie infringement, that infringement can still be justified
b) Objective- courts looking for them to be compelling and substantial
 Examples- Conversation, public safety, management of a certain resource
 P. 542- public interest is not a valid justification (as per Sparrow)

c) means
84

 did crown consult w/ Ab group before passing law that allegedly violates right
 do they compensate for the infrigment
 did it give Ab group get priority
 minimal impairment in obtaining restriction (ie. no fishing at all, rather than restricted form)

R v. Vand der Peet – 1996 SC


- commercial fishing case
- stolo nation prosecuted under the fisheries act

1) Test for aboriginal rights


- The claimed right must relate to a specific practice, tradition or custom
- The activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming
the right => in this case, commercial fishing only incidental
- A central and significant part of the culture; a defining feature of the culture in question
- Cannot be a practice general to all societies, nor a practice merely incidental to the culture in question
- Aboriginal rights are not general and universal, but particular to the group claiming them; a case by case basis
- Must be very specific about what right they are claiming – court won’t look at generalized claims
2) Relevant time period
- To be an aboriginal right, the practice, custom or tradition must have existed prior to contact with Europeans (not merely prior to
European sovereignty) => pre contact
- Doesn’t have to exist in same form as in historic times, can have evolved [Sparrow]
- Must have continuity in the practice, custom or tradition to the present day, although need not be unbroken
- Metis may present an exception
3) Relationship between AR and aboriginal title
- Title is a sub-category of AR, going to claims of land
- AR arise from prior occupation of land, and existence of organized societies and distinctive cultures
- To see whether an AR has been made out, one must look both to the group’s relationship to land, and to existence of a distinctive
culture
4) Evidentiary issues
- Courts should adopt a flexible approach, accepting evidence that would not normally be admissible
- Evidence of post-contact practices is relevant to proving the existence of pre-contact practices

Class
- Inquiry has to focus on specific practice or custom
- Practice must be defining and not merely incidental
- Pre-contract
o Can evolve
o Continuous
- Must be cognizable to the Cdn legal system and is reasonable for the court to accept
- Purpose- reconcile the AB ppl with the rest of Canada
- Lamer- appellant failed to show that selling fish for money was not a integral part of their life (incidental) so not protected
- but fishing for sustenance was
- claim fails under the first step (pf infringement of the right) so no need to continue to the rest

R v. Gladstone – 1996 SC

Two differences from Sparrow


1) The govts means in regulating commercial AR, as opposed to subsistence rights, may be quite different, particularly as it relates to
priority. Right to fish for food had an internal limitation (only need so much food for subsistence). But may be unlimited as it respects
commercial interests.
- Right to commercial fishing doesn’t mean govt has to give exclusive priority to aboriginals. There will be a priority, just won’t be
an exclusive one.
2) Conservation is not the sole valid objective of govt regulation. Since s.35 seeks the reconciliation of aboriginal societies with Crown
sovereignty, limits in the interests of the whole community can be justifiable

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