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The courts identify the most dominant feature (pith and substance) of a challenged law to understand its matter. The pith

and substance doctrine enables one level of government to enact laws with substantial impact on matters outside its

jurisdiction. The phrase in relation to in s91 and s92 supports the doctrine.

JR Charter- There are two

1. First, determine whether the challenged law abridges a right. In this stage, the courts characterize the law and themeaning of the asserted right. (If it does, the courts move to a 2

ndstage].

2.

The second step is tod

etermine whether the law is justified

und

er s1 as a reasonable limit prescribed

by law thatcan be demonstrably justified in a free and democratic society. R v Oakes (1986) If not, the regulation is

inconsistent with the Charterand is null and void pursuant to s. 52 of the Constitution Act, 1982

[4mins- mandatory]

JR Federal There are two steps involved to determine whether a law falls within a legislative competence of the

legislature that enacted it.

1. First, identify the matter (pith and substance or characterization) of the challenged law;2. Second, assign the matter to one of the classes of subjects in the Constitutional Act 1867.

[2 mins- mandatory]

Step 1: General Comments

Federal

s52 Constitution Act 1982 states anylaw contrary to provision of the Constitution of Canada is of no force effect During a JR, procedural and evidentiary rules are the same for federal grounds and Charter grounds. Judicial review has occurred often in interpreting s91 which lists enumerated heads of power that are competent to the federa

Parliament and s92 lists out laws that are competent to provincial Legislatures

[3 mins]

Charter

It guarantees a set of civil liberties that are so important that they should receive immunity from state action. Charter is part of the constitution therefore it can only be altered by a constitutional amendment. It applies to both levels of government (s32(1)) and will usually apply if government delegates a compulsion to a body or

person and will not apply between two private parties.

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

Corporations cannot benefit from s2a, s7,s 9, s10, s11e, s13, s14. Any laws enacted before April 17 1982 will have no force or effect It is considered a unifying instrument, adding a dimension of allegiance to Canada as a whole while invoking national

standards.

The standard of proof of legislative facts in Charter cases is the civil standard ( balance of probabilities) R v Oakes 1986[5 mins]

Step 2: Judicial Review

Federal vs. CharterIf a law is challenged on federal and Charter grounds, Hogg argues that presence of s33 override and the support given in

s31(1) with the phrase in respect of all matters within the authority of federal grounds take priority.

Step 3: JR Federal- stage one


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a. Effect- a court will always consider the effect of the statute when determining the pith and substance. The courts arealways concerned about the rights and liabilities of those who are affected. Alberta Tax Reference Lord Maugham- the cour

must take into account any public general knowledge of which the Court would take judicial notice, and may in proper case

require to be informed evidence as to what the effect of the legislation will be.

b. Presumption of Constitutionality- When a law is challenged for lack of legislative competence, there is a legal presumptionof constitutionality. When faced with two plausible characterizations of a law, we should choose that which supports

constitutional validity. Siemens v Manitoba [2003] The presumption of constitutionality carries 3 legal consequences.

i. in choosing between competing, plausible characterization of a law, the court should normally choose between competing,plausible characterization of a law Re: Firearms Act [2000]

ii. where the validity of a law requires a finding of fact (finding of emergency) the finding of fact need not be proved strictly bythe government. It is enough that there be a rational basis for the finding.

iii. if a wide interpretation would extend beyond powers of the enacting legislative body, the court should read down the law soas to confine it those applications that are within the power of the enacting legislative body.

These 3 functions have the effect of reducing interference by unelected judges with the affairs of elected legislative. Onlyreading down with exist in Charter cases

c. Singling Out-Alberta Tax Reference is read as prohibiting provincial legislatures from singling out banks or other federaundertakings for special treatment.Normally, if a provincial law of general application, in relation to a provincial matter may

validly affect federal matters. If a provincial law impairs a vital part of a federally regulated enterprise, then the provincialaw-although valid in the generality of its applications, will not apply to the federally-incorporated company or federally

regulated enterprise.

d. Double aspect doctrine acknowledges that some laws have both a federal/provincial matter. ( ie-Laws prescribing rules ofconduct on the roads have a double aspect and therefore competent to both Parliament and a Legislature.) Hodge v The

Queen (1883) held subjects which in one aspect and for one purpose fall within s92 may in another aspect fall within ss91.

e. Purpose- What is the purpose of a statue or the mischief that needs correcting? A statue can have a purpose in its functionand sometimes a preamble (intention) In R v Big M Drug Mart (1985)- The Court acknowledged that if the purpose of the

statue had not been religious but rather the secular goal of enforcing a day of rest from labour then the Act would have

fallen under provincial rather than federal competence. Note: legislative history is helpful. Reports of royal commissions, law

reform commissions, government policy papers and parliamentary debates are admissible.

f. efficacy- reviewing judges may pass judgment on the likely efficiency of the statue but leave the wisdom or policy withlegislation . Re Firearms Act [2000]- Parliament is the judge of whether a measure is likely to achieve its intended purpose

efficaciousness is not relevant to the Courts division of powers analysis.

g. colourability- The colourability doctrine is invoked when a statue bears the formal trappings of a matter within a jurisdictionbut in reality is addressed to a matter outside jurisdiction. The doctrine applies the maxim that a legislative body cannot do

indirectly what it cannot do directly. Alberta Bank Taxation Reference- although ostensibly designed as a taxation measure

was in reality directed at banking. Colourability cases, there is a very fine line between adjudication on policy and

adjudication on validity. The colourability

h. criteria of choice- The choice between competing characteristics of the statue, in order to identify the most important one asmatter may be nothing less than a choice between validity or invalidity. The hardest cases the choice is not compelled by

either nature of the statue or the prior judicial decisions. The choice is inevitably one of policy. The choice must be guided by

a concept of federalism. Ask is this the kind of law that should be made by a province or federal government? Simeon-

suggests the 3 values of community, efficiency and democracy as criteria that are helpful on appraisal of the allocation of power in a federal system. Room to argue the weight to each one of the values. Where the case is not clear, a choice

supporting the legislation is preferred.

Fixing the Law/Options

Severance- The leading feature of that plan or scheme will be the pith and substance. It is possible that only part of the statue is

invalid and the balance of it would be valid if it stood alone. Rule- severance is inappropriate when the remaining good part A-G Altav A-G Can [1947] is so inextricably bound up with the part declared invalid that what remains cannot independently survive.


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Toronto v York [1938] If two parts can exist independently then it is plausible to regard them as two different laws. There does appear

to be a presumption against severance.

Charter- severance is more common in Charter cases. The same test is applied but it is unlikely that the entire statue is struck down

on Charter rights.Only one case where entire statue was struck down-R v Big M Drug Mart (1985)

Reading Down- This doctrine when possible a statue is interpreted as being within the power of the enacting legislative body. This

means that general language of the statue which is literally extending beyond provincial or legislative power will be construed more

narrowly so as to keep it within the permissible scope of power.

Interjurisdictional Immunity A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be

attacked in 3 ways1. the validity of the law or2. the applicability of the law3. the operability of the law.

First, it could be argued that the law is invalid because the pith and substance comes with a class of subjects that is outside the

jurisdiction of the enacting body. Alberta Bank taxation Reference (1938)

Second, way of attacking is to acknowledge that the law is valid in most of its applications but argue that the law should be interpreted

so as not to apply to the matter that is outside the jurisdiction of the enacting body. If this argument succeeds, the law is not held to be

invalid, but simply inapplicable to extra-jurisdictional matter. The technique is reading down the law.

Third, way of attacking a law that applies outside the matter outside the jurisdiction of the enacting body is to argue that the law is

inoperative through the doctrine of paramountcy. The doctrine states that where there is inconsistency between federal and provincial

laws the federal law should prevail. Paramountncy render provincial law inoperative to the extent of the inconsistency.

Under the second argument-

a) Federally-incorporated companies- a valid provincial law may not impair the status or essential powers of a federallyincorporated company. John Deere Plow Co v Wharton [1915]

b) Federally regulated undertakings-undertakings engaged in interprovincial or international transportation orcommunication , which come under federal jurisdiction under the exception to s92(10) are immune from otherwise valid

provincial laws which would have sterilizing the undertakings

c) other federal matters- the doctrine of interjurisdictional immunity also applies outside to fields of transportation andcommunication.

d) rationale of interjurisidictional immunity- the pith and substance doctrine , which allows a provincial law to affect afederal matter is applied more often the interjurisidcitional immunity. Provincial laws may validly extend to federal subjects

unless laws bear upon the those subjects in what makes them specifically of federal jurisdiction. The rule which emerged

is- Ordon Estate v Grail [1998] if the provincial law would affect the basic, minimum and unassailable core of the federa

subject, then the interjurisdictional immunity doctrine stipulated that the provincial law must be restricted in the applications

(read down) to exclude the federal subject. Canadian Western Bank v. Alberta,[2007] 2 S.C.R. 3 If, the provincial law did no

affect the core of the federal subject, the pith and substance doctrine stipulated that the provincial law validity applied to the

federal subject.

e) provincial entities- there is no case applying the doctrine of interjurisdictional immunity to federal laws to protect provincially incorporated companies or provincially regulated undertakings. The doctrine should be reciprocated but th

weight of the authority seems to be given to a federal head of power

Step Three: JR Federal Stage Two

(a)- relevance- once the pith and substance (matter) of the challenged law has been identified the second stage of the judicial review is

to assign it to one of the classes of head.

Once the pith and substance (matter) of the challenged law has been identified, the court will then assign it to one of the

classes of head.


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R v Big M Drug Mart [1985] To establish a violation of a Charter right, Name must show either the Challenged Laws

purpose (rare-Lords Day Act) or its effect (often) abridges a Charter right. R v Jones 1986. If the effect on the Charter rights

is trivial or insubstantial, there is no breach of the Charter.

The effect of this Challenged law is...? (preamble, mischief) [3 mins-]

(b)- exclusiveness- each class of subjects are listened in ss91 and ss92 of the Constitution Act 1867. double aspect-Papp v Papp-the

pith and substance doctrine occasionally has the same effect.

(c)- ancillary doctrine- The Constitution of Canada does not include an ancillary doctrine (like the US or Australia) in the

enumerated heads of power of either Federal Parliament or provincial Legislatures. No such power is needed in Canada. The pith and

substance doctrine enables a law that is classified as in relation to. The rational connection test allows each enumerated head o

power to embrace laws that have some impact on matters entrusted to the other level of government and it provides a flexible standard

which gives the enacting body considerable leeway to choose the legislative techniques it deems appropriate which was applied in R v

Zelensky(1978) & Multiple Acces. The impugned provision be essential to the legislative scheme is stricter then the rationa

connection test found in Pappv Papp.

For a major encroachment it deserves a stricter test- the impugned provision must be essential to the legislative scheme Dickson CJ as serious of the encroachment on provincial powers varies, so does the test required to ensure that an

appropriate constitutional balance maintained.

(d)-Concurrency- 3 provisions that confer concurrent powers. First s92A (2) confers on the provincial Legislatures the power to

make laws in relation to the export of natural resources. and s92A(3)- is explicit the power to make laws in relation to the export o

natural resources, trade and commerce power. Secondly, s94A confers on the federal Parliament the power to make laws in relation to

old age pensions and supplementary benefits and the sections acknowledge the existence on concurrent provincial power. Thirdly,

s95- confers power on both the federal Parliament and the provincial legislatures concurrent powers over agriculture and

immigration. Two doctrines allows substantial area of concurrency in Canada. The double aspect doctrine and the second judge made

doctrine that leads to concurrency is the pith and substance doctrine.

(e) exhaustiveness- the distribution of power between the federal Parliament and the provincial Legislature is exhaustive. exception

to this doctrine- the framers knew created s92(16)- is generally all matters of a merely local or private nature of the province. The

opening words ofs91 give the federal Parliament the residuary power to make laws for the peace, order and good government o

Canada... Any matter which does not come within any of the specific classes of subjects will be provincial if it is merely local or

private (s92 (16) and will be federal if it has a national dimension (s91, opening words)

(f) progressive interpretation- this doctrine is one of the means by which the Constitution Act 1867 has been able to adapt to the

changes in Canadian society. It stipulates that the language used to describe the classes of subjects is not frozen in time in 1867 so

Undertakings connecting the provinces could be telephone service.

Some critics argue against it (orignalism) stating that the courts are forever bound by the original understanding This was seen in

Same Sex Marriage reference (2004). The SCC emphasized the living tree quality of the Constitution. A good example can be seen

in Re: Employment Insurance Act [2005]- where the evolution of role of women in the labour market and the role of fathers in child

care was highlighted. The constitutional language must be placed in the proper linguistic, philosophical and historical context of the

provision.

(g) unwritten principles- democracy, constitutionalism, the rule of law, the independence of the judiciary, the protection of civil

liberties and federalism, are some of the principles. There are a number of cases where the SCC has found an unwritten principle in

the Constitution. that is enforceable in precisely the same way as if it were an express term. Manitoba Language Reference(1985)

rule of law Re: Remuneration of Judges (1997)- judicial independence Succession Reference (1998)-democracy, federalism

constitutionalism, and the protection of minorities.

Canadian Western Bankv.Alberta, [2007] 2 S.C.R. 315.5(a)- This case is an example of laws which have been upheld despite their incidental impact on matters outside the

enacting bodys jurisdiction. A provincial law in relation to insurance and banking.15.8(c)- A majority of the court confirmed that it had indeed changed its mind about the test for interjurisdictional immunity.Binnie and LeBel JJ who wrote the majority opinion, announced that the court was completing the the reassessment begun in

Irwin Toy

15.8(e)-

Step 3: JR Charter- Stage One Characterisation


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s7 Charter guarantees everyone has the right to life liberty security of person in accordance with fundamental justice 2

Steps Process- 1stDo the provisions deprive individuals of their life, liberty or security of the person; and (2

nd) if so, whether

this deprivation is in accordance with the principles of fundamental justice:, R. v.Malmo-Levine, [2003]. [3 mins ]

2n

step ofs7Is the deprivation in accordance with the principles of fundamental justice?

APPLIES TO: Irwin Toy v Que [1989] s7 applies to everyone but this does not include corporations. Singh- It includes anyone in

Canada (illegal or legal immigrants) butnot a foetus R v Morgentaler (No 2).BURDEN IS ON: s 7 applies only to governmental action as defined in s32 Charter but will usually apply if government delegates

a compulsion to a body or person.

LIFE- Chaoaulli v Que [2005]-The SCC heldthat 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).

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

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

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

personal autonomy involving, at the very least, control over ones bodily integrity free from state interference and freedom from state

imposed psychological and emotional stress. However there has to be a threshold of seriousness to be crossed.

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

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

must be greater than ordinary stress or anxiety

SECURITY IS NOT:

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

Gosselin v Quebec (2002)-has been interpreted as imposing positive obligations on the state to ensure that each personenjoyed life, liberty or security of the person

BC Motor Vehicle Reference only definition of fundamental justice. Larmer J assertion that the principles of fundamentajustice are to be found in the basic 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 therefore asa principle of fundamental justice. First- the rule must be a legal principle. Second- there must be a significant societa

consensus that is fundamental to the way in which the legal system ought to fairly operate. Third- the rule must be capable of

being identified with sufficient precision to yield a manageable standard

BC Motor Vehicle Reference (1985)- that fundamental justice covers both substantive and procedure justice. Chaoulli-SCC held that a fundamental principle of justice that a law not be arbitrary.

ARBITRARY AND UNFAIR Rodriquez v BC (1993)-Sponkia J asserted that the principles of fundamental justice mus

be fundamental in the sense that they would have general acceptance among reasonable people. McLachlin J

LHeureux Dube J and the substantial agreement of Cory J-in their view a law would violate fundamental justice if the law

was arbitrary orunfair

VAGUE R v Nova Scotia Pharmaceutical Society (1992)-The law should be intelligible and should sufficiently delineate

an area of risk and whether the law provides an adequate basis for legal debate

DISPROPORTIONATE R v Malmo- Levine (2003)-The doctrine of disproportionaity is a breach of the principles offundamental justice. This doctrine of disproportionally requires the court to determine:

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

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

Absolute Liability-prison for these crimes is a breach of fundamental justice. The rules of natural justice are rules of procedure only: they require a hearing, unbiased adjudication and fair procedure. Due

process was omitted from s7 in order to make it did not give rise to a Canadian doctrine of substantive due process.


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FAIR TRIAL- Charkaoui v. Canada (Citizenship and Immigration), [2007] SCC took a more radical departure from the

traditional trial format. The issue of the security certificate was a deprivation of liberty under s7 and that the review process

did not satisfy the principles of fundamental justice because it did not provide the named person a fair hearing

Crimes/ Murder- R v Martineau (1990)- the SCC held that a high level of mens rea (subjective forseeability) that wasrequired by s7

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 7 - SEE LIFE Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350-SEE FAIR TRIAL

The purpose ofs. 2(a) is to ensure that society doesnt interfere with profoundly personal beliefs that govern ones perception ofoneself, humankind, nature or a higher or different order of being. s2(a) shelters individuals/ groups only to the extent thareligious beliefs/conduct might reasonably or actually be threatened.

two step test- An infringement ofs. 2(a) of the Charterwill be made out where: (1) the claimant sincerely believes in a belief orpractice that has a nexus with religion; and (2) the impugned measure interferes with the claimants ability to act in accordance

with his or her religious beliefs in a manner that is more than trivial or insubstantial: SyndicatNorthcrest v. Amselem, 2004 Trivia

or insubstantial interference is interference that does not threaten actual religious beliefs or conduct. As explained in R. v

Edwards Books and Art Ltd. [1986]

Step One s2(a)uses the word everyone this does not apply to corporations but it (Singh) includes anyone in Canada (illegal or lega

immigrants).

BURDEN IS ON: s 7 applies only to governmental action as defined in s32 Charter but will usually apply if governmendelegates a compulsion to a body or person.

definition of freedom of religion- R v Big M Drug Mart (1985)-Dickson J- is the right to entertain such religious beliefs as aperson chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifes

religious belief by worship and practice or by teaching or by dissemination.(note: includes religious practices and beliefs)

conscience- R v Morgentaler [1988]protects systems of beliefs which are not theocentric (centered on a deity)and which mighnot be characterized as religious for that reason(or for some other reason)

religious practices- Syndicate Northcrest v Amselem (2004) all that was necessary to qualify a practice for Charter protectionwas that the claimant sincerely believed that the practice was of religious significance Religious belief was intensely persona

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 as limited as possible

Individuals change and so can their beliefs.

Step Two

Need to determine if the manner of interference is trivial or insubstantial. not 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 capable of interfering with religious belief or practice:Edwards Books

costs- In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefsis not prohibited if the burden is trivial or insubstantial: see, on this point,R. v. Jones, [1986] 2 S.C.R. 284,perWilson

For a state-imposed cost or burden to be proscribedby 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

claimants 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 30 mins]

individual and collective-Alberta Brethren- that freedom of religion has both individual and collective aspects.

s 2(a)Freedom of Conscience and Religion- Constitution Act, 1982, s.2(a) guarantees to everyone the

fundamental freedom of conscience and religion. 1.5 mins

limits on s7 Justified under 1

Could a violation of fundamental justice ever be reasonable limit that can be demonstrably justified in a free and democratisociety? Wilson J of the SCC expressed the view several times that the answer to this view would be no: a violation o

fundamental justice could never be justified unders 1.

only in cases arising out of exceptional condition, such as natural disasters, the outbreak of war, epidemics, and the like. RBC Motor Vehicle Act 1985


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What is the nature of the limit on the s. 2(a) ri ht?

Is the limit on the s. 2(a) right justified under s. 1 of the Charter?

(a) Is the limit prescribed by law?

What does the religious group believe? What are the effects of this new law? How does it affect them practicing their religions? Is the

regulation making them choose between their religion and something else? [4 mins]

Freedom of religion presents a particular challenge because of the broad scope of the Charter guarantee. Much of theregulation of a modern state could be claimed by various individuals to have a more than trivial impact on a sincerely held

religious belief.

Courts recognize that the issue _facts_is a social problem that has grown exponentially in terms of cost to the community The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be

threatened. A degree of deference is therefore appropriate:Edwards Books, at pp. 781-82,perDickson C.J.,

s1 requires that before a proportionality analysis is undertaken, the court must satisfy itself that the measure is prescribed bylaw. If a limit on a Charterright is not prescribed by law it cannot be justified under s. 1. Rather, it is a government act

attracting a remedy under s. 24 of the Charter.

Regulations/ statues are measures prescribed by law unders. 1 of the Charter: see Irwin Toy Ltd. v. Quebec(A. G.)[1989] [9 mins]

Maintaining the integrity of a system. the governments primary goal is traffic safety, as denoted by the title of the Act. Tofurther this goal, the Act puts in place a system of licensing drivers. A collateral effect

of the licensing R v Big M Drug Mart (1985)- Objective did not in fact cause the enactment of the law. Dickson CJ rejected the notion that the

purpose of a law might change over time with changing social conditions. Held: Purpose is a function of the intent of those who

drafted and enacted the legislation at the time, and not of any shifting variable.

I conclude that the Province has established that the goal of ensuring the integrity of the drivers licensing system so as tominimize identity theft associated with that system is pressing and substantial. Having established that the limit on the right isa measure prescribed by law and that the asserted purpose of the limit is pressing and substantial

[3-4 mins]

i) Federal/ Province must show that the new requirement is rationally connected to the goal of preserving theintegrity of the drivers licensing system by minimizing the risk of identity theft through the illicit use of drivers

licences. To establish a rational connection, the government must show a causal connection between the

infringement and the benefit sought on the basis of reason or logic: RJR-MacDonald Inc. v. Canada (Attorney

General), [1995] - any evidence to support the views? R v Oakes [1986] -Dickson- There must be a rationa

connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking

The reverse onus clause could not satisfy this requirement because it did not make any stipulation as to the quantity of

(c) Is the means by which the goal is furthered proportionate?

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

(ii) Does the limit minimally impair the right?(iii) Is the law proportionate in its effect? [5 mins]

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


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narcotics in the possession of the accused- possession of a small amount of narcotics does not support inference o

trafficking.

Hutterian Brethren - The issue at the stage of rational connection is simply whether there is a rational linkbetween the infringing measure and the government goal.

ii) or ask are less harmful means of achieving the legislative goal? The court may apply theRJR-MacDonald, the minimal impairment analysis. If the law falls within a range of

reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternativewhich might better tailor objective to infringement . . . . On the other hand, if the government fails to explain why

a significantly less intrusive and equally effective measure was not chosen, the law may fail.

It includes alternative measures that give sufficient protection, in all the circumstances, to the governments goal:Charkaoui v. Canada(Citizenship and Immigration), 2007 SCC 9, [2007]

oakes vs other nnneeed work 65-71 Minimal impairment and when you challenging laws reasonable accommodation application are conceptually distinct Hutterian Brethren

iii) When one balances the harm done to the claimants religious freedom against the benefits associated with

the universal photo requirement for drivers licences, is the limit on the right proportionate in effect to the public

benefit conferred by the limit?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, themeasure 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 ina free and democratic society. R v OakesW. Hogg argues that the fourth branch ofOakes is actually redundant

The final stage ofOakes allows for a broader assessment of whether the benefits of the impugned law are worth

the cost of the rights limitation. In Thomson Newspapers Co. v. Canada (Attorney General),

Re: s193 and s195.1 SCC has defined expression-activity is expressive if it attempts to convey meaning. Any activity that is not expression under the Courts definition. Excluded is: purely physical and does not

convey or attempt to convey meaning.

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

Conclusion on justification

s2(b)- Freedom ofExpression guarantees to everyone the fundamental freedom of thought, belief, opinion, and

expression, including freedom of the press and other media of communication


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Is the limit on the s. 2(b) right justified under s. 1 of the Charter?



(ii) Does the limit minimally impair the right?

(iii) Is the law proportionate in its effect?


What is the nature of the limit on the s. 2(b) ri ht?

a speakers choice of language is protected Ford v Que [1988] R v Keegstra (1990)Expressive activity that takes the form of violence is not protected by s2(b). content neutrality-R v Keegstra (1990)-governing principle- is the content of a statement cannot deprive it

on the protection accorded by s2(b) no matter how offensive it be

R V Keegstra (1990) - teacher/ anti Semitic The court rejected there were any content based restrictions onthe s2 (b) right. s2 (b) covered all message however unpopular, distasteful or contrary to the mainstream.

Commercial expression- is expression that is designed to promote the sale of goods and services. It isregulated for public safety reasons.

There are two reasons why commercial expression ought to be protected under the guarantee of freedom ofexpression in Canada and the US.

1. it does literally fall within the meaning of the word expression and it does make a contribution to themarket place of ideas.

2. it is very difficult to distinguish commercial speech from other kinds of speech(political/economic/social) ideas are inherit in commercial speech.

In Canada, the balancing of the value of free expression against the value of consumer protection has to

take place within s1.


Maintaining the integrity of a system.



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(i) Is the limit rationally connected to the purpose?(ii) Does the limit minimally impair the right?




What is the nature of the limit on the s. 2 a ri ht?

Maintaining the integrity of a system. the governments primary goal is traffic safety, as denoted by the title of the Act. To further this

goal, the Act puts in place a system of licensing drivers. A collateral effect

of the licensing

I conclude that the Province has established that the goal of ensuring the integrity of the

drivers licensing system so as to minimize identity theft associated with that system is pressing and

substantial. Having established that the limit on the right is a measure prescribed by law and thatthe asserted purpose of the limit is pressing and substantial

s15, s28 Equality rights

Aboriginal Rights s.91(24) Constitution Act, 1982, s.25, s.35



What is the nature of the limit on s 15 ors28 rights?

Is this limit on s15 and s28justified unders 1?


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(ii) Does the limit minimally impair the right?


Maintaining the integrity of a system. the governments primary goal is traffic safety, as denoted by the title of the Act. To further this

goal, the Act puts in place a system of licensing drivers. A collateral effect

of the licensing



substantial. Having established that the limit on the right is a measure prescribed by law and that

the asserted purpose of the limit is pressing and substantial




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(i) Is the limit rationally connected to the purpose?(ii) Does the limit minimally impair the right?




Maintaining the integrity of a system. the governments primary goal is traffic safety, as denoted by the title of the Act. To

further this goal, the Act puts in place a system of licensing drivers. A collateral effect

of the licensing



substantial. Having established that the limit on the right is a measure prescribed by law and that

the asserted purpose of the limit is pressing and substantial


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