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1
General
 
 
Th
e C
h
arter guarantees a set of civil liberties t
h
at are so important t
h
at t
h
ey s
h
ould receive immunity from state action.
 
I
t applies to bot
h
levels of government(s32(1))(not foreign governments(Sc
h
reiber v Canada AG) [1998]) andwill usually apply if government delegates a compulsion to a body or person w
h
ile not applying between two private parties.[RWDSU v Dolp
h
in Delivery1986]
 
 
T
o receive benefits one must be inside Canada.Sing
h
v Min. of Employment and
I
mmi. (1985).
Th
e claim will usually be broug
h
t by t
h
erig
h
ts
h
older.
 
Th
e courts can use ³purposive´ interpretation of t
h
e C
h
arter ³to give to individuals t
h
e full measure of t
h
e fundamental rig
h
ts andfreedoms.Hunter v Sout
h
am [1984]
 
 
Th
e standard of proof of legislative facts in C
h
arter cases is t
h
e civil standard (balance of probabilities)R v Oakes 1986[4]
 
Th
ere are two steps in judicial review to determine w
h
et
h
er a c
h
allenged law derogates from a C
h
arter rig
h
t.1.
 
First,
determine whether the challenged law abridges a right.
 
I
n t
h
is stage, t
h
e courts c
h
aracterize t
h
e law and t
h
e meaning of t
h
e assertedrig
h
t. (
I
f it does, t
h
e courts move to a 2
nd
stage].2.
 
Th
e second step is to
determine whether the law is justified unders1as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society.
 R v Oakes (1986)
 
I
f not, t
h
e regulation is inconsistent wit
h
t
h
e
Charter 
and is null and void pursuant tos. 52 of t
h
e
Constitution Act, 1982
[4mins- mandatory]Step 1- C
h
aracterization
 
R v Big M Drug Mart [1985]
T
o establis
h
a violation of a C
h
arter rig
h
t,
name
must s
h
ow eit
h
er t
h
e
Challenged Law¶s
purpose
(
rare
-
 Lord¶s Day Act 
)
or
its
effect (often
) abridges a C
h
arter rig
h
t.R v Jones 1986. 
I
f t
h
e effect on t
h
e C
h
arter rig
h
ts is trivial or insubstantial,t
h
ere is no breac
h
of t
h
e C
h
arter.
Th
e effect of t
h
is c
h
allenged law is... [1.5]
 
Religion
 
s2(a)Constitution Act, 1982,
s.2(a)
± guarantees to
³everyone
´ t
h
e
³fundamental freedom
´ of ³
conscience and religion
.´
 
³everyone¶
applies to ³everyone´ but t
h
is does not include corporations.Sing
h
- 
I
t includes anyone in Canada (illegal or legal immigrants).
 
Th
e purpose of s2(a)is to s
h
elters individuals and groups only to t
h
e extent t
h
at religious beliefs and conduct mig
h
t reasonably or actually be t
h
reatened by state interference.
 
A
n infringement of 
 s. 2(
a
)of t
h
e C
h
arter 
 
will be made out w
h
ere:
(1)
t
h
e claimant sincerely believes in a belief or practice t
h
at
h
as anexus wit
h
religion; and
(2)
t
h
e impugned measure interferes wit
h
t
h
e claimant¶s ability to act in accordance wit
h
 
h
is or 
h
er religious beliefs in a manner t
h
at is more t
h
an trivial or insubstantial:
S 
 yndicat Northcrest v. Amselem
, 2004 
T
rivial or insubstantial´ interference isinterference t
h
at does not t
h
reaten 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 t
h
e rig
h
t to entertain suc
h
religious beliefs as a personc
h
ooses, t
h
e rig
h
t to declare religious beliefs openly and wit
h
out fear of 
h
indrance or reprisal, and t
h
e rig
h
t to manifest religious belief bywors
h
ip and practice or by teac
h
ing or by dissemination.(note: includes religious practices and beliefs)
 
³religious practices´-
Syndicate Nort
h
crest v Amselem (2004)³all t
h
at was necessary to qualify a practice was t
h
at t
h
e claimant sincerely believed t
h
at t
h
e practice was
³of religious significance
´ Religious belief was intensely personal and can easily vary from one person toanot
h
er.
Th
e test was w
h
olly subjective. Expert evidence was not necessary because t
h
e claimant
h
as to s
h
ow a sincerity of belief. Even aninquiry into t
h
e sincerity of belief was to be ³as limited as possible´
I
ndividuals c
h
ange and so can t
h
eir beliefs.
 
 
³conscience-³
R v Morgentaler [1988]
 
 protects systems of beliefs w
h
ic
h
are not t
h
eocentric (centered on a deity)and w
h
ic
h
mig
h
t not bec
h
aracterized as religious for t
h
at reason(or for some ot
h
er reason)
 
 
(2)
A
re the law affects more that trivial or insubstantial?
 Edwards Books
,Evidence of a state-imposed cost or burden would not suffice;t
h
ere would need to be evidence t
h
at suc
h
a burden was ³capable of interfering wit
h
religious belief or practice´:
 
C
osts-
 
I
n s
h
ort, legislative or administrative action w
h
ic
h
increases t
h
e cost of practising or ot
h
erwise manifesting religious beliefs is not pro
h
ibited if t
h
e burden is trivial or insubstantial: see, on t
h
is point,
 R. v. Jones
, [1986]2 S.C.R. 284,
 per 
Wilson For a state-imposed costor burden to be proscribed by s. 2(
a
)it must be capable of interfering wit
h
religious belief or practice.
 
wavier of rights-
Syndicate Nort
h
crest v Amselem (2004) ± 
Th
e majority brus
h
ed aside t
h
e argument of t
h
eir co-owners t
h
at t
h
e claimants
h
ad waived t
h
eir religious rig
h
ts.
I
acobucci J- wondered w
h
et
h
er a religious practice could be waved at all,
h
e wondered if 
h
e by law wassufficiently clear to amount to a waiver.
 
individual and collective
 -Alberta Bret
h
ren- t
h
at ³freedom of religion
h
as µbot
h
individual and collective aspects¶´.
 
other topics- children, same sex marriage, funding minority schools,
[20 + ]
 
 
2
 
 
religion note ons1- 
Freedom of religion presents a particular c
h
allenge because of t
h
e broad scope of t
h
e
Charter 
guarantee.Muc
h
of t
h
e regulation of a modern state could be claimed by various individuals to
h
ave a more t
h
an trivial impact on asincerely
h
eld religious belief.
Expression
 
s2(b)-guarantees to
³everyone
´ t
h
e fundamental freedom of t
h
oug
h
t, belief, opinion, and expression, including freedom of t
h
e press andot
h
er media of communication.
 
Th
e rationale in t
h
e constitutional protection of freedom of expression is its role as an instrument in democratic governments.
Th
ere are basically 3 reasons.
I
t¶s important for democracy, it¶s an instrument for trut
h
, and it¶s important role in personal fulfillment. 
I
rwin
T
oy vQuebec (1989)
 
T
est-
 
I
rwin
T
oys v Quebec (1989)-wit
h
an alleged violation of t
h
e guarantee of freedom of expression requires a two step inquiry. (1) t
h
ecourts determine w
h
et
h
er t
h
e plaintiff's activity falls wit
h
in t
h
e sp
h
ere of conduct protected by t
h
e guarantee. Activity w
h
ic
h
(1)Re: s193and s195.1does not convey or attempt to convey a meaning, and t
h
us
h
as no content of expression, or (2)R v Keegstra (1990)w
h
ic
h
 conveys a meaning but t
h
roug
h
a violent form of expression, is not wit
h
in t
h
e protected sp
h
ere of conduct.
I
f wit
h
in t
h
e protected sp
h
ere of conduct, t
h
e second step is to determine (2) w
h
et
h
er t
h
e purpose or effect of t
h
e 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(
I
rwin
T
oys)corporations and people wit
h
in(Sing
h
)Canada. 
 
I
rwin
T
oys v Quebec (1989)-W
h
ile all expressive
content 
is wort
h
y of protection t
h
e
method or location
of t
h
e expression may not be.Expression
h
as bot
h
a content (always protected) and a form (not always protected), and t
h
e two can be inextricably connected. Activity isexpressive if it attempts to convey meaning.
Th
at meaning is its content.
 
L
ocation-
Montréal (City) v. 2952-1366 Québec
I
nc., [2005] 3 S.C.R. 141One aspect of s2(b)is t
h
e rig
h
t to express oneself in certain public spaces.
Th
e argument for s. 2(
b
)protection on all public property focuses on owners
h
ip.
 
test- Is Government-owned property public or private in nature
- w
h
et
h
er t
h
e place is a public place w
h
ere one would expectconstitutional protection for free expression on t
h
e basis t
h
at expression in t
h
at place does not conflict wit
h
t
h
e purposes w
h
ic
h
 s. 2(
b
)isintended to serve, namely (1) democratic discourse, (2) trut
h
finding and (3) self-fulfillment.
T
o answer t
h
is question, t
h
e following factorss
h
ould be considered: (a) t
h
e
h
istorical or actual function of t
h
e place; and (b) w
h
et
h
er ot
h
er aspects of t
h
e place suggest t
h
at expressionwit
h
in it would undermine t
h
e values underlying free expression.[8]
 
content neutrality
-R v Keegstra (1990)-
 
governing principle- ³is t
h
e content of a statement cannot deprive it on t
h
e protection accorded bys2(b)no matter 
h
ow offensive it be´
 
R v Zundel 1992-s2 (b)does protect deliberate false
h
oods.
 
Ford v Quebec [1988]-
Th
e freedom includes t
h
e freedom to express oneself in t
h
e language of one¶s c
h
oice.
 
I
rwin
T
oy 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.
 
S
econd step-
I
f t
h
e government's purpose is to restrict attempts to convey a meaning, t
h
ere
h
as been a limitation by law of s. 2(b)and as. 1  analysis is required.
I
f,
h
owever, t
h
is was not t
h
e government's purpose, t
h
e court must move on to an analysis of t
h
e effects of t
h
egovernment action.
 
shifting purposes-
 Purpose is a function of t
h
e intent of t
h
ose w
h
o drafted and enacted t
h
e legislation at t
h
e time, and not of any s
h
iftingvariable."Big M Drug Mart 
 
example of purpose- w
h
ere t
h
e government aims to control only t
h
e p
h
ysical consequences of certain
h
uman activity, regardless of t
h
emeaning being conveyed, its purpose is not to control expression.
 
Saumur v. City of Quebec, [1953]a municipal by-law forbidding distribution of pamp
h
lets wit
h
out prior aut
h
orization from t
h
e C
h
ief of Police was a colourable attempt to restrict expression.
 
direct or restriction is breach-
if t
h
e government
h
as aimed to control attempts to convey a meaning eit
h
er by directly restricting t
h
econtent of expression or by restricting a form of expression tied to content, its purpose trenc
h
es upon t
h
e guarantee.
 
H
owever not breach-
it aims only to control t
h
e p
h
ysical consequences of particular conduct, its purpose does not trenc
h
upon t
h
e guarantee
 
effects-
Even if t
h
e government's purpose was not to control or restrict attempts to convey a meaning,t
h
e Court must still decide w
h
et
h
er t
h
e effect of t
h
e government action was to restrict t
h
e plaintiff's free expression. Here, t
h
e burden is ont
h
e plaintiff to demonstrate t
h
at suc
h
an effect occurred.
other topics- picketing , sexual issues-butler test
[10 ]
 
 
3
 
Fundamental Justice
 
s7
 
guarantees everyone
h
as t
h
e rig
h
t to life liberty security of person in accordance wit
h
fundamental justice.
Th
e courts apply a two step process to an alleged breac
h
of s7. 
Th
e courts first ask, do t
h
e provisions deprive individuals of t
h
eir life, liberty or security of t
h
e person;and
(2
nd
)
if so, w
h
et
h
er t
h
is deprivation is in accordance wit
h
t
h
e principles of fundamental justice?R. v. Malmo-Levine, [2003].
 
APPL
IE
S
 
TO:
 
I
rwin
T
oy v Que [1989] s7applies to ³everyone´ but does not include corporations unless t
h
ey defend a c
h
arge.R vW
h
olesale Group. Sing
h
- 
I
t includes any illegal immigrants in Canada but not a foetusR v Morgentaler (No 2).
 
L
IFE-
C
h
aoaulli v Que [2005]-
T
he
SCC
held
 t
h
at excessive waiting times for treatment in t
h
e public
h
ealt
h
care system of Quebecincreased t
h
e risk of deat
h
, and were in violation of t
h
e rig
h
t to life (as well as security of t
h
e person). 
 
L
IBER 
TY
Re: ss 193 and 195.1 CC -³
L
iberty´-
 includes freedom from p
h
ysical restraintBlencoe v BC (2000)-liberty ins 7it also applies w
h
enever a law prevents a person from making ³
fundamental personal choices
.´
 
S
E
CU
RI
TY
 
O
F
P
ER 
SON
 
- Rodriguez v. B.C (A.G) [1993],Sopinka J. stated security of t
h
e person encompasses ³a notion of personalautonomy involving, at t
h
e very least, control over one¶s bodily integrity free from state interference and freedom from state-imposed psyc
h
ological and emotional stress´.Blencoe v BC (2000)However t
h
ere
h
as to be a t
h
res
h
old of seriousness to be crossed.
Th
ere must be a sufficient nexus between t
h
e state action and t
h
e prejudice to t
h
e claimant.
 
 R. v. Morgentaler 
, [1988]Delays in obtaining medical treatment w
h
ic
h
affect patients p
h
ysically and psyc
h
ologically trigger t
h
e protection of s. 7of t
h
e C
h
arter 
. New Brunswick v. G. (J.)
[1999]
Th
ese ³need not t
h
e level of nervous s
h
ock or psyc
h
iatric illness, butmust be greater t
h
an ordinary stress or anxiety´ [12 mins] 
I
S NO
T
: 
 
Re ss 193 and 195.1 CC -s7liberty must not be interpreted to include property, not including freedom of contract and not includingeconomic liberty.
 
Gosselin v Quebec (2002)- s7
h
as not been interpreted as imposing positive obligations on t
h
e state to ensure t
h
at eac
h
person, enjoyedlife, liberty or security of t
h
e person [20 ]
S
econd step
:
 
T
he second step is to ask; is the deprivation in accordance with the principles of fundamental justice?
 
BC Motor Ve
h
icle Reference ± only definition of fundamental justice.Larmer J assertion t
h
at t
h
e ³principles of fundamental justice are to be found in t
h
e ³basic tenets of t
h
e legal system´
 
R v Malmo-Levine (2003)
Th
e court created 3 requirements for a rule to qualify as a basic tenet of legal system and t
h
erefore as a principle of fundamental justice. 
First-
t
h
e rule must be a ³legal principle´.
S
econd
- t
h
ere must be a ³significant societal consensus t
h
at isfundamental to t
h
e way in w
h
ic
h
t
h
e legal system oug
h
t to fairly operate.´
 
T
hird
- t
h
e rule must be capable of being ³identified wit
h
 sufficient precision to yield a manageable standard
 
BC Motor Ve
h
icle Reference (1985)-t
h
at fundamental justice covers bot
h
substantive and procedure justice
 
Sures
h
-
T
o determine fundamental justice look at Canadian law, international norms and treaties, and t
h
e common law natural justice norms(for procedural principles)
 
C
h
aoulli-SCC
h
eld t
h
at a fundamental principle of justice t
h
at a law not be arbitrary. 
A
rbitrary-
Rodriquez v BC (1993
)- 
S
ponkia J
asserted t
h
at t
h
e principles of fundamental justice must be
³fundamental
´ in t
h
e sense t
h
att
h
ey would
h
ave
general acceptance among reasonable people
.
 
McLac
h
lin J, L¶Heureux ±Dube J and t
h
e substantial agreement of CoryJ-in t
h
eir view a law would violate fundamental justice if t
h
e law was ³
arbitrary
´ or 
³unfair
´ 
Vague test-
R v Nova Scotia P
h
armaceutical Society (1992)-
Th
e law s
h
ould be ³intelligible´ and s
h
ould sufficiently delineate ³an area of risk´ and w
h
et
h
er t
h
e law provides ³an adequate basis for legal debate´ 
Disproportional-
 R v Malmo- Levine (2003)-
 
Th
e doctrine of ³disproportionaity´ is a breac
h
of t
h
e principles of fundamental justice.
Th
is doctrine of disproportionally requires t
h
e court to determine: 1) w
h
et
h
er a law pursues a ³legitimate interest´ and if it does2) w
h
et
h
er t
h
e law is grossly disproportionate to t
h
e state interest
 
R v Heywood 1994-A law cannot be overbroad.
 
ot
h
er topics-rig
h
t to silence, mens rea, disclosure, fair 
h
earings, absolute liability. [17 ]
 
S
ection 1 Justification
-Re BC Motor Ve
h
icle Act 1985A law t
h
at violates t
h
e principles of fundamental justice can still be up
h
eld under s1 butonly in cases arising out of exception conditions suc
h
as natural disasters, t
h
e outbreak of war, epidemics, and t
h
e like..´
 
C
h
arkaoui v Canada(Citz.and
I
mmi 2007]-violations of t
h
e principles of fundamental justice, specifically t
h
e rig
h
t to a fair 
h
earing are difficultto justify under s1....Nevert
h
eless, t
h
e task may not be impossible, particularly in extraordinary circumstances w
h
ere concerns are grave and t
h
ec
h
allenges complex.[3 ]
Equality
 
s15confers rig
h
ts on an ³individual´. Equality is expressed in 4 different ways
:
a)
equality before t
h
e law
b)
equality under t
h
e law
c)
 equal protection of t
h
e law
d)
and t
h
e equal benefit of t
h
e law
 
 
I
t also guarantees against ³discrimination based on race, national or et
h
nic origin, color, religion, sex, age or mental or p
h
ysical disability.
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