Charter Handbook

8/8/2019 Charter Handbook

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General

The Charter guarantees a set of civil liberties that are so important that they should receive immunity from state action.

It applies to both levels of government (s32(1)) (not foreign governments (Schreiber v Canada AG) [1998]) and will usually apply i

government delegates a compulsion to a body or person while not applying between two private parties. [RWDSU v Dolphin Delivery

1986]

To receive benefits one must be inside Canada. Singh v Min. of Employment and Immi. (1985).The claim will usually be brought by the

rights holder.

The courts can use ³purposive´ interpretation of the Charter ³to give to individuals the full measure of the fundamental rights and

freedoms. Hunter v Southam [1984]

The standard of proof of legislative facts in Charter cases is the civil standard (balance of probabilities) R v Oakes 1986 [4]

There are two steps in judicial review to determine whether a challenged law derogates from a Charter right.

1. First, determine whether the challenged law abridges a right. In this stage, the courts characterize the law and the meaning of the asserted

right. (If it does, the courts move to a 2nd stage].

2. The second step is to determine whether the law is justified under s1 as a reasonable limit prescribed by law that can be demonstrably

justified in a free and democratic society. R v Oakes (1986) If not, the regulation is inconsistent with the Charter and is null and void

pursuant to s. 52 of the Constitution Act, 1982 [4mins- mandatory

Step 1- Characterization

R v Big M Drug Mart [1985] To establish a violation of a Charter right, name must show either the Challenged Law¶s purpose (rare

Lord¶s Day Act ) or its effect (often) abridges a Charter right. R v Jones 1986. If the effect on the Charter rights is trivial or insubstantialthere is no breach of the Charter.

The effect of this challenged law is... [1.5]

Religion

s2(a) Constitution Act, 1982, s.2(a) ± guarantees to ³everyone´ the ³fundamental freedom´ of ³conscience and religion.´

³everyone¶ applies to ³everyone´ but this does not include corporations. Singh- It includes anyone in Canada (illegal or legal immigrants).

The purpose of s2(a) is to shelters individuals and groups only to the extent that religious beliefs and conduct might reasonably or actually

be threatened by state interference.

An infringement of s. 2(a) of the Charter will be made out where: (1) the claimant sincerely believes in a belief or practice that has a

nexus with religion; and (2) the impugned measure interferes with the claimant¶s ability to act in accordance with his or her religiou

beliefs in a manner that is more than trivial or insubstantial: S yndicat Northcrest v. Amselem, 2004 Trivial or insubstantial´ interference i

interference that does not threaten actual religious beliefs or conduct. As explained in R. v. Edwards Books and Art Ltd. [1986] freedom of religion is defined as- R v Big M Drug Mart (1985)-Dickson J- ³ the right to entertain such religious beliefs as a person

chooses, 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 or by dissemination.(note: includes religious practices and beliefs)

³religious practices´- Syndicate Northcrest v Amselem (2004) ³all that was necessary to qualify a practice was that the claimant sincerely

believed that the practice was ³of religious significance´ Religious belief was intensely personal and can easily vary from one person to

another. The test was wholly subjective. Expert evidence was not necessary because the claimant has to show a sincerity of belief. Even an

inquiry into the sincerity of belief was to be ³as limited as possible´ Individuals change and so can their beliefs.

³conscience-³ R v Morgentaler [1988] protects systems of beliefs which are not theocentric (centered on a deity)and which might not be

characterized as religious for that reason(or for some other reason)

(2)Are the law affects more that trivial or insubstantial? Edwards Books, Evidence of a state-imposed cost or burden would not suffice

there would need to be evidence that such a burden was ³capable of interfering with religious belief or practice´:

Costs- In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs is no

prohibited if the burden is trivial or insubstantial: see, on this point, R. v. Jones, [1986] 2 S.C.R. 284, per Wilson For a state-imposed cosor burden to be proscribed by s. 2(a) it must be capable of interfering with religious belief or practice.

wavier of rights- Syndicate Northcrest v Amselem (2004) ± The majority brushed aside the argument of their co-owners that the claimant

had waived their religious rights. Iacobucci J- wondered whether a religious practice could be waved at all, he wondered if he by law was

sufficiently clear to amount to a waiver.

individual and collective -Alberta Brethren - that ³freedom of religion has µboth individual and collective aspects¶´.

other topics- children, same sex marriage, funding minority schools, [20 + ]



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religion note on s1- Freedom of religion presents a particular challenge because of the broad scope of the Charter guarantee

Much of the regulation of a modern state could be claimed by various individuals to have a more than trivial impact on asincerely held religious belief.

Expression

s2(b)- guarantees to ³everyone´ the fundamental freedom of thought, belief, opinion, and expression, including freedom of the press and

other media of communication.

The rationale in the constitutional protection of freedom of expression is its role as an instrument in democratic governments. There are

basically 3 reasons. It¶s important for democracy, it¶s an instrument for truth, and it¶s important role in personal fulfillment. Irwin Toy v

Quebec (1989)

Test- Irwin Toys v Quebec (1989)- with an alleged violation of the guarantee of freedom of expression requires a two step inquiry. (1) the

courts determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee. Activity which (1) Re: s193

and s195.1 does not convey or attempt to convey a meaning, and thus has no content of expression, or (2) R v Keegstra (1990) which

conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct. If within the protected sphere o

conduct, the second step is to determine (2) whether the purpose or effect of the government action in issue was to restrict freedom of

expression. [8]

First step- Does it fall within a sphere of expressive conducted protected?

everyone´- includes (Irwin Toys) corporations and people within (Singh) Canada.

Irwin Toys v Quebec (1989)- While all expressive content is worthy of protection the method or location of the expression may not be

Expression has both a content (always protected) and a form (not always protected), and t he two can be inextricably connected. Activity is

expressive if it attempts to convey meaning. That meaning is its content.

Location- Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141 One aspect of s2(b) is the right to express oneself in certain

public spaces. The argument for s. 2(b) protection on all public property focuses on ownership.

test- Is Government-owned property public or private in nature- whether the place is a public place where one would expec

constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) i

intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors

should be considered: (a) the historical or actual function of the place; and (b) whether other aspects of the place suggest that expression

within it would undermine the values underlying free expression.

[8]

content neutrality- R v Keegstra (1990)- governing principle- ³is the content of a statement cannot deprive it on the protection accorded

by s2(b) no matter how offensive it be´

R v Zundel 1992-s2 (b) does protect deliberate false hoods.

Ford v Quebec [1988]-The freedom includes the freedom to express oneself in the language of one¶s choice.

Irwin Toy v Quebec 1989-s2 (b) does include commercial expression.

Re: s193 and s195.1-All forms of art are communicative-novels, plays, films, paintings, dances, and music

[22 ]

conclusion- it appears that the plaintiff's activity does fall within the scope of guaranteed free expression.

Second step- If the government's purpose is to restrict attempts to convey a meaning, there has been a limitation by law of s. 2(b) and a s. 1

analysis is required. If, however, this was not the government's purpose, the court must move on to an analysis of the effects of the

government action.

shifting purposes- Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting

variable." Big M Drug Mart

example of purpose- where the government aims to control only the physical consequences of certain human activity, regardless of the

meaning being conveyed, its purpose is not to control expression.

Saumur v. City of Quebec, [1953] a municipal by-law forbidding distribution of pamphlets without prior authorization from the Chief o

Police was a colourable attempt to restrict expression. direct or restriction is breach- if the government has aimed to control attempts to convey a meaning either by directly restricting the

content of expression or by restricting a form of expression tied to content, its purpose trenc hes upon the guarantee.

However not breach- it aims only to control the physical consequences of particular conduct, its

purpose does not trench upon the guarantee

effects- Even if the government's purpose was not to control or restrict attempts to convey a meaning,

the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression. Here, the burden is on

the plaintiff to demonstrate that such an effect occurred.

other topics- picketing , sexual issues-butler test [10 ]



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Fundamental Justice

s7 guarantees everyone has the right to life liberty security of person in accordance with fundamental justice. The courts apply a two step

process to an alleged breach of s7. The courts first ask, do the provisions deprive individuals of their life, liberty or security of the person

and (2nd ) if so, whether this deprivation is in accordance with the principles of fundamental justice? R. v. Malmo-Levine, [2003].

APPLIES TO: Irwin Toy v Que [1989] s7 applies to ³everyone´ but does not include corporations unless they defend a charge. R v

Wholesale Group. Singh- It includes any illegal immigrants in Canada but not a foetus R v Morgentaler (No 2).

LIFE- Chaoaulli v Que [2005]- The SCC held that excessive waiting times for treatment in the public health care system of Quebec

increased the risk of death, and were in violation of the right to life (as well as security of the person).

LIBER TY Re: ss 193 and 195.1 CC -³Liberty´- includes freedom from physical restraint Blencoe v BC (2000)- liberty in s 7 it also

applies whenever a law prevents a person from making ³fundamental personal choices.´

SECURITY OF PER SON - Rodriguez v. B.C (A.G) [1993], Sopinka J. stated security of the person encompasses ³a notion of persona

autonomy involving, at the very least, control over one¶s bodily integrity free from state interference and freedom from state-imposed

psychological and emotional stress´. Blencoe v BC (2000) However there has to be a threshold of seriousness to be crossed. There mus

be a sufficient nexus between the state action and the prejudice to the claimant.

R. v. Morgentaler , [1988] Delays in obtaining medical treatment which affect patients physically and psychologically trigger the

protection of s. 7 of the Charter . New Brunswick v. G. (J.) [1999] These ³need not the level of nervous shock or psychiatric illness, bu

must be greater than ordinary stress or anxiety´ [12 mins]

IS NOT:

Re ss 193 and 195.1 CC -s7 liberty must not be interpreted to include property, not including freedom of contract and not including

economic liberty.

Gosselin v Quebec (2002)- s7 has not been interpreted as imposing positive obligations on the state to ensure that each person, enjoyed

life, liberty or security of the person [20 ]

Second step: The second step is to ask; is the deprivation in accordance with the principles of fundamental justice?

BC Motor Vehicle Reference ± only definition of fundamental justice. Larmer J assertion that the ³principles of fundamental justice are to

be found in the ³basic tenets of the legal system´

R v Malmo-Levine (2003) The court created 3 requirements for a rule to qualify as a basic tenet of legal system and t herefore as a

principle of fundamental justice. First- the rule must be a ³legal principle´. Second- there must be a ³significant societal consensus that i

fundamental to the way in which the legal system ought to fairly operate.´ Third- the rule must be capable of being ³identified with

sufficient precision to yield a manageable standard

BC Motor Vehicle Reference (1985)- that fundamental justice covers both substantive and procedure justice

Suresh-To determine fundamental justice look at Canadian law, international norms and treaties, and the common law natural justice norms

(for procedural principles)

Chaoulli- SCC held that a fundamental principle of justice that a law not be arbitrary.

Arbitrary- Rodriquez v BC (1993)- Sponkia J asserted that the principles of fundamental justice must be ³fundamental´ in the sense tha

they would have general acceptance among reasonable people. McLachlin J, L¶Heureux ±Dube J and the substantial agreement of Cory

J-in their view a law would violate fundamental justice if the law was ³arbitrary´ or ³unfair´

Vague test- R v Nova Scotia Pharmaceutical Society (1992)- The law should be ³intelligible´ and should sufficiently delineate ³an area o

risk´ and whether the law provides ³an adequate basis for legal debate´

Disproportional- R v Malmo- Levine (2003)- The doctrine of ³disproportionaity´ is a breach of the principles of fundamental justice

This doctrine of disproportionally requires the court to determine:

1) whether a law pursues a ³legitimate interest´ and if it does

2) whether the law is grossly disproportionate to the state interest

R v Heywood 1994- A law cannot be overbroad.

other topics-right to silence, mens rea, disclosure, fair hearings, absolute liability. [17 ]

Section 1 Justification- Re BC Motor Vehicle Act 1985A law that violates the principles of fundamental justice can still be upheld under s1 bu

only in cases arising out of exception conditions such as natural disasters, the outbreak of war, epidemics, and the like..´

Charkaoui v Canada(Citz.and Immi 2007]- violations of the principles of fundamental justice, specifically the right to a fair hearing are difficul

to justify under s1....Nevertheless, the task may not be impossible, particularly in extraordinary circumstances where concerns are grave and the

challenges complex.

[3 ]

Equality

s15 confers rights on an ³individual´. Equality is expressed in 4 different ways : a) equality before the law b) equality under the law c)

equal protection of the law d) and the equal benefit of the law

It also guarantees against ³discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.



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s15(2)-[Hogg 2010]authorizes the creation of affirmative action programmes that have the purpose of ameliorating the conditions o

disadvantaged groups.

s32(2) Charter delayed the coming into force of s15 for 3 years after coming into force for the rest of the Charter. This gave time for the

governments to review its body of laws and make those amendments to bring conformity with s 15 Charter.

reasonable accommodations- Eaton v Brant Country Board of Education (1997)- held that the school system was under a s15 duty to make

reasonable accommodations for a special need child

Discrimination can be identified through a three-step test:

1. Did the law, program, or activity impose differential treatment between the claimant and a comparator group? That is, was a distinctioncreated between the groups in purpose or effect? Does the 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 w/in Canadian society resulting in substantively differential

treatment between the claimant and others on the basis of one or more personal characteristics?

2. If so, was the differential treatment based on enumerated or analogous grounds?a. Enumerated Grounds

1. Race

2. National or ethnic origin3. Colour 4. Religion5. Sex6. Age7. Mental Disability

8. Physical Disability b. Analogous Grounds

Criteria founded on immutable characteristics or those changeable only at an unacceptable cost to personal identity

Marital status- Miron

b) Sexual orientation- Egan/ Vriend

Citizenship (or non-citizenship)- Andrews

Off-reserve residence for Aboriginals ± Cor biere

3. If so, did the law in question have a purpose or effect that is discriminatory within the meaning of the equality guarantee?a. by imposing a burden upon, or w/holding a benefit from, the claimant in a manner that reflects the stereotypical application of

presumed group or personal characteristics, or that otherwise has the effect of perpetuating or promoting the view that the individualis 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?

Law suggested four "contextual factors" to help guide a contextual analysis of whether the imputed distinction violates the human dignity of theclaimant. A new analysis for the finding for discrimination was applied in (R v Kapp)

³Old discrimination test Law´

pre-existing disadvantage correlation between the grounds of the claim and the actual needs, capacities, and circumstances ameliorative purpose or effect of the law on more disadvantaged groups nature and scope of interest

³New Test´ now for discrimination- Discrimination is now defined as: ³the perpetuation of disadvantage or stereotyping´. Factors for´discrimination´ (R v Kapp):

Perpetuation of disadvantage and prejudice: 1.pre-existing disadvantage, stereotyping, prejudice or vulnerability 2.Nature of interest affected 3.existence of ameliorative purposes or effects on other groups B)Stereotyping: 4.correspondence btw distinction and claimant's characteristics

R v Kapp [2000] legal test for s15(2)- a program does not violate the s.15 equality guarantee if the government can demonstrate that: (1

the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or

analogous grounds subsumed in ss. 15(1) (the enumerated grounds in ss. 15(1) are race, national or ethnic origin, colour, religion, sex, age

or mental or physical disability).



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Law v Canada ( 1995)- unanimously reaffirmed the restriction of s15 to listed and analogous grounds. Law also added a new restriction

that discrimination must impair ³human dignity´

Corbiere v Can [1999]- SCC held that an analogous ground is one based on ³a personal characteristic that is immutable or changeable only

at unacceptable cost to a personal identity

Real threats to equality- is not from legislative action and official action but from discrimination by private persons such as employees

trade unions, landlords, realtors etc. Now provinces have human rights legislation to prevent discrimination in private business.

³valid federal objective´ was a term once used(see template)

Sexual Equality

s28- Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons

Hogg states this a ³privileged rights´ ( not subject to override)

s28 sexual equality- may be immune from s 1 and s33 so may be at the top of the hierarchy

Section 28 is not an overriding section regardless of how the balance of the Charter is read. It was not the intent of the Charter to destroy

reasonable limits that may be prescribed by law, or to prohibit affirmative action programmes: Blainey v. Ontario Hockey Association [3]

MinorityLanguage Rights

s23 confers upon citizens of Canada who are members of the English Speaking minority in Quebec or the French speaking minority in the othe

provinces, the right to have their children receive primary and secondary school instruction in the minority language of that province. This righ

applies to denominational schools and non-denominational schools, and is posses by parents who fit into one of the three categories.

s23(1)(a)- the mother tongue of the parent s23(1)(b)- the language of primary school instructions in Canada of the parent, and (³Canada Clause¶)

s23(2) the language of instruction in Canada of one child of the parent

By virtue of s59 Constitution of Act 1982- the paragraph does not apply in Quebec until the legislative assembly or government of Quebec

decides to adopt it. English speaking parents in Quebec have no right to send their children to English speaking schools, unless they fit into the

second or third category of parent recognized by s 23.

The general purpose of s. 23 is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring tha

each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population.

The framers unquestionably intended by s.23 to establish a general regime for the language of instruction: A.G. Quebec v. Quebec

Association of Protestant S chool

³Canada Clause´- Canadian citizens who move from one province to another retain the right to have their children educated in the same

language as that in which the parent was educated anywhere in Canada. Quebec is no exempt from this clause. A.G. Quebec v. Quebec

Association of Protestant S chool

³where the number warrant´ - s23 (3)(a) uses the phrase the right to ³instruction´ is limited to ³wherever´ in the province the number o

children of citizens who have such right is sufficient to warrant the provision to them public funds´

You need to look at scale and decide where the minority group sits. Apply case law. Mahe v Alberta (1990)- court rejected argument tha

language facilities was not just physical facilities. It also includes a degree of ³management and control´ that was proportionate to the

number of qualifying children.

Arsenault-Cameron v PEI (2000) French language school wanting a bus service for 49 students.SCC sided with parents and held the

relevant number ³was somewhere between the known demand and the potential students who may go.´ The number should over 100. The

number in this case who potentially would go is 155. [18]

Aboriginal Treaty Rights

s.25 aboriginal and treaty rights-recognizes t

he possibility of conflict and provides t

hat t

he aboriginal and treaty rig

hts are to prevail. s. 25 cannot be interpreted to be a limitation upon what has been dealt with in s. 35

R. v. Kapp, which he made several key determinations: (1). s.25 is an interpretive provision and does not create new rights.25 (2).s.25 acts as a shield designed to address the tension between individual Charter rights and collective Aboriginal and treaty rights.(3)the s.25 shield is not absolute:

Aboriginal Rights (see notes)

s.35 The second and main provision dealing with aboriginal and treaty rights is s. 35 which constitutes all of Part II of the Constitution Act, 1982 and

provides. self note see charter in text for entirety.



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TEST FOR ANALYZI NG A S. 35(1) CLAIM (S parrow)

Claimant must demonstrate that he was acting pursuant to a right protected by s. 35.

Governed either by a treaty or in accordance w/ Van der Peet test.

³Aboriginal right´ (Van der Peet )

Identify nature of the activity carried out pursuant to the claim?

Determine the precise nature and purpose of the modern activity claimed to be an aboriginal right

Integral practice to t

he distinctive culture of aboriginal people?

To qualify as an aboriginal right, practice had to be ³integral to the distinctive culture´ of the aboriginal group

Was the right in question an ³existing´ right at the time of the enactment of s. 35(1) of the Constitution Act, 1982?

³existing´ aboriginal right: (S parrow)

Right that was not previously extinguished before 1982

Regulations cannot extinguish a right (Dickson & La Forest)

extinguishment of right only when federal gvt expresses plain & clear intention to do so

Has the right been infringed? Claimant must show, prima facie, that legislation in question places an adverse restriction on the right. Court will

examine questions such as:

What are the characteristics or incidents of the right?

Is the limitation reasonable?

Does it impose undue hardship?

Does it deny to rights holders their preferred means of exercising rights?

***Justification (step 3) ± ONLY if there¶s interference by government with aboriginal right

* If gov interfered with the right, can the interference be justified? 4 step test:

1. Is the legislative objective valid?

Compelling & substantial objective directed at the reconciliation of the prior occupation of NA by Aboriginal peoples w/ assertion of Crown

sovereignty (Gladstone) a) those aimed at conserving & managing natural resources

b) those aimed at preventing harm to the general populace or to aboriginal peoples

c) * ³for the public interest´ too vague ± not sufficient

d) the pursuit of economic and regional fairness (Lamer in Gladstone)

e) recognition of the historical reliance, and participation in, the fishery by non-aboriginal groups (Lamer inGladstone)

2. Limitation must reflect the hounour of the Crown

3. Is the fiduciary relationship honored?

1. If expropriation is involved, is fair compensation available?

2. Has the aboriginal group been consulted about the regulatory measures?

3. Priority given to aboriginals is not unlimited ± must not lead to an exclusive right (i.e. selling fish in unlimited quantity would practically give aboriginal exclusive priority over fish in an area) (Lamer in Gladstone)

4. Crown must prioritize aboriginal rights over other claimants (as little infringement as possible)

Does the regulation infringe the right as little as possible (min. impairment)

s33 - Role of section 33 s 33 is an override power which enables the Parliament or a Legislature to enact a law that will override the guarantees in s 2, and s7 to 15

of the Charter. All that is necessary is the enactment of a law contacting an express declaration that the law is to operate notwithstandingthe relevant provision of the Charter.



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The override provision extends to s2 (expression), s7 to 14 ( legal rights) and s 15(equality). It does not extend to s3-5(democratic rights), s6 (mobility rights) s16 to 23 (language rights) or s 28(sexual equality). No override is

possible with these provisions.

s33(1) enables the Parliament or a Legislature to override s2, s7, s8, s9, s10, s11, s12, s13, s14, s15 of the Charter.

If a statue contains an express declaration that it is to operate notwithstanding a provision included in s2 or s7-s15 then by virtue of s33(2the statue will operate free from the invalidating effect of the Charter provision.

They can limit or abolish one or more of the rights and freedoms. If the override power does not exist (or not exercised) then such a statue would be valid under within s1.

Outside Quebec, the power has been used 3 times.

s33 override power is a sunset clause which will automatically expire within 5 years. 33(4) permits the express declaration to be re-enactedThe sunset clause makes Parliament/Legislatures to re think the laws.

s33 stipulates that the Parliament or Legislature must ³expressly´ declare that a statue is to operate notwithstanding a Charter right. It musnot be inferred. It becomes a manner and form requirement. It also must be specific as to the statue and must be specific as to the Charteright which is to be overridden.

Judicial Review and s33 39.7 A declaration under s33 will be held to be invalid by the courts if it fails to satisfy the various requirements of s33 that have been described

earlier in this Chapter. The declaration must be confined to the rights specified in s 33, it must be specified as to the statue that is exemp

from the Charter and as to the rights that are over ridden and it may not have a retroactive effect. To attract a declaration one could apply a s1 approach to strike down statues that were in conflict with the values of a free and democratic

society. Governments are reluctant to use s33 because critics

Dialogue with the Legislative Branch

second look cases

36.6(d) O¶Connor courts had to balance between the accuser¶s right under s 7 to make full answer and defense and the complainants righunder s8 right to privacy and under s 15 equality. After O¶Connor, Parliament enacted new laws. The court described this process as a³notable example of the dialogue between the judicial and legislative

political questions Operation Dismantle v The Queen (1985) Americans testing cruise missiles in Canada. Court held it was ok. Wilson J, speaking for a

unanimous Court on this issue, said that there was no doctrine of political questions in Canadian constitutional law.

Interpretation of the Charter

1. Progressive Interpretation Since a constitution is difficult to amend and its language is broad to accommodate a wide range of facts. I

calls for a flexible interpretation. Lord Sankey Edwards v A.G. (1930) µa living tree capable of growth

and expansion within its naturalimits¶

2. Generous Interpretation ± Lord Sankey Edwards v AG ( 1930) he said that the provisions of the Constitution Act 1867 should not be ³cudown by a narrow and technical construction but should be given a large and liberal interpretation´

3. Purposive Interpretation - this involves an attempt to ascertain the purpose of each Charter right and then to interpret the right so as toinclude activity that comes within the purpose and exclude activity that does not. (This usually comes with the generous approach)

4. Process as purpose- ³the Charter guarantees the integrity of the political process itself by enhancing ³the opportunities for public debateand collective deliberation. This approach has two advantages. The first advantage is that it supplies a helpful context for interpreting particular guaratantes.The second advantage of the process-based theory of judicial review is that it offers a solution to the problem of thelegitimacy of judicial review.

Hierarchy of Rights

2 tiers are created by s33.

1. common rights ( subject to override) s 2, s 7, s8, s9, s10, s11, s12, s13, s14 2. ³privileged rights´ ( not subject to override) s3, s4, s5, s6, s 16, s 17, s18, s19, s20, s21, s22, s23, s28

s28 sexual equality- may be immune from s 1 and s33 so may be at the top of the hierarchy.

when common rights and privileged rights come into conflict it does not mean that one must take priority over the other.

(e) Conflict between rights s36.8

s25- aboriginal and treaty rights-recognizes the possibility of conflict and provides that the aboriginal and treaty rights are to prevail.



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s29 recognizes the possibility( 93 vs 15) of conflict and provides that denominational school rights are to prevail. 93 (denomination school rightsvs 15(discrimination on the ground of religion)



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Justification [ 25 ]

self note-s1 affects each section different-see bottoms.

Is the limit on the # right? justified under s. 1 of the Charter ?

The 2nd stage of JR is to determine whether the law is justified under s 1 as a ³reasonable limit prescribed by law´ that can be

³demonstrably justified in a free and democratic society.´ R v Oakes (1986) -s1 performed two functions. It not only provides for

limits on the guaranteed rights; it also expressly guaranteed the rights and freedoms set out in the Charter . The burden is on the person

alleging a breach of the charter. If established, then the burden shifts to the government rep. who is supporting the law. R v Oakes (1986

The government must show the law is a ³reasonable limit in a free and democratic society.´ The higher standard is proof by a

preponderance of probability and evidence- Is ³generally´ required.

(a) Is the limit ³prescribed by law´?

Court decisions usually show the 1. the law is accessible & 2. the law is precise.

A law will be too vague if (test) ³where there is no intelligible standard and where the legislature has been given a plenary discretion

to do whatever seems best in a wide set of circumstances.´ Irwin Toy v Que [1989]

accessible - statues, rule of common law, regulations will qualify. R v Therens 1985 not accessible- directives, guidelines issued by government departments or agencies. Committee for Cth of Can. v Can [1991]

³discretion´ statutory or administrative? case law

If a limit on a Charter right is not ³prescribed by law´ it cannot be justified under s. 1. Rather, it is a government act, attracting a

remedy under s. 24 of the Charter [4.5 ]

(b) Is the purpose for which the limit is imposed pressing and substantial?

The law must pursue an objective that is sufficiently important to justify limiting a Charter right. (very rare cases will court objecto legislative judgment that the object of law is important enough to limit Charter.

self note- The statement of the objective should be related to the infringement of the Charter and supply a reason for infringing

on a Charter right.

no shifting objective-if that asserted objective did not actually motivate cause the enactment of the law. R v Big Drug Mart 1985

administrative costs- not important enough to breach right.

(c) Is the means by which the goal is furthered proportionate? (self note- don¶t answer this -answer in i-iii)

(i) Is the limit rationally connected to the purpose?

RJR MacDonald v Canada(1995)Judges will use common sense, reason and logic to determine if a rational connection exists.

R v Oakes [1986] The law must be carefully designed to achieve the objective in question, it should not be arbitrary, unfair

or based on irrational considerations. [1.5 ]

(ii) Does the limit minimally impair the right? R v Advance Cutting & Coring [2001]The law should ³impair´ as little as possible the right or freedom in question. It should no

impair no more than is necessary to accomplish the desired objective. Judges allow provincial legislatures a ³margin oappreciation´ for different provincial social objectives.

Charkaoui v. Canada(Citizenship and Immigration), 2007 SCC 9, [2007]It includes alternative measures that give sufficien

protection, in all the circumstances, to the government¶s goal: self note- in almost any situation it could be easier to come upwith a less drastic means..

(iii) Is the law proportionate in its effect?

This step must require a proportionality between the effects of the measures which is responsible for limiting the Charter right o

freedom and the objective which has been identified as sufficient importance. The courts will balance the interests of society with

those individuals and groups. R v Oakes 1986

R v Edwards Book and Art (1986) -The effects of the limiting measures, must not be so severely trench on individual or group

rights that the legislative objective is outweighed by the abridgment of rights



10

All the courts go through this step during cases Hogg believe that it has never been used

Conclusion on justification

After you determine your rights have been infringed, you must determine remedy. S. 52 (declaration of invalidity

(available to individuals & sometimes corporations) S. 24(1) remedy (not necessarily a declaration of invalidity) (only

available to individuals

Documents

Charter Handbook