Constitution CAN – Duffy Winter 2019

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ______________________________________________ 2

Chapter 15 – Antecedents of the Charter __________________________________________________________ 2
Roncarelli v. Duplessis [1959] SCC ____________________________________________________________________________ 2
Chapter 14 – Advent of the Charter ______________________________________________________________ 3
Vriend v. Alberta [1998] SCC_________________________________________________________________________________ 3
Chapter 17 – The Framework of the Charter ________________________________________________________ 3
Hunter v. Southam [1984] SCC _______________________________________________________________________________ 3
Greater Vancouver Transit Authority v. Canadian Federation of Students [2009] SCC ____________________________________ 4
R v. Oakes [1986] SCC ______________________________________________________________________________________ 4
Edmonton Journal v. Alberta [1989] SCC _______________________________________________________________________ 5
Irwin Toy Ltd. v. Quebec [1989] SCC ___________________________________________________________________________ 5
Chapter 18 – Application _______________________________________________________________________ 6
RWDSU v. Dolphin Deliveries Ltd. [1986] SCC ___________________________________________________________________ 6
McKinney v. University of Guelph [1990] SCC ___________________________________________________________________ 7
Pridgen v. University of Calgary [2012] ABQB ___________________________________________________________________ 8
Eldridge v. BC [1997] SCC ___________________________________________________________________________________ 8
Vriend v. Alberta [1989] SCC_________________________________________________________________________________ 9
Chapter 25 – Enforcements of Rights _____________________________________________________________ 9
Schachter v. Canada [1992] SCC _____________________________________________________________________________ 10
Vriend v. Alberta [1989] SCC________________________________________________________________________________ 11
Chapter 19 – Freedom of Religion _______________________________________________________________ 12
R v. Big M Drug Mart [1985] SCC ____________________________________________________________________________ 13
Mouvement Laique Quebecois v. Saguenay [2015] SCC __________________________________________________________ 13
Syndicate Northcrest v. Amselem [2004] SCC __________________________________________________________________ 14
Alberta v. Hutterian Brethren of Wilson Colony [2009] ___________________________________________________________ 15
Ktunaxa Nation v. BC (Minister of Forestry) [2017] SCC ___________________________________________________________ 16
Law Society of BC v. Trinity Western University [2017] SCC________________________________________________________ 17
Chapter 20 – Freedom of Expression _____________________________________________________________ 17
Irwin Toy Ltd. v. Quebec [1989] SCC __________________________________________________________________________ 18
RJR Macdonald Inc. v. Quebec [1989] SCC _____________________________________________________________________ 19
R v. Keegstra [1990] SCC ___________________________________________________________________________________ 20
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 _______________________________________________ 20
Montreal v. 2952-1366 Quebec Inc. [2005] SCC ________________________________________________________________ 21
Chapter 22 – Life, Liberty and Security of the Person ________________________________________________ 22
Re BC Motor Vehicle Act [1985] SCC _________________________________________________________________________ 22
B(R) v. Children’s Aid Society of Toronto [1995] SCC _____________________________________________________________ 23
R v. Morgentaler [1988] SCC________________________________________________________________________________ 24
Canada v. PHS Community Services [2011] SCC _________________________________________________________________ 25
Canada v. Bedford [2013] SCC ______________________________________________________________________________ 26
Carter v. Canada [2015] SCC ________________________________________________________________________________ 27
Gosselin v. Quebec [2002] SCC ______________________________________________________________________________ 28
Chapter 23 – Equality Rights ___________________________________________________________________ 29
Andrews v. Law Society of BC [1989] SCC______________________________________________________________________ 30
Law v. Canada [1999] SCC __________________________________________________________________________________ 30
R v. Kapp [2008] SCC ______________________________________________________________________________________ 30
Quebec v. A [2013] SCC ___________________________________________________________________________________ 31
Kahkewistahaw First Nation v. Taypotat [2015] SCC _____________________________________________________________ 32
Eldridge v. BC [1997] SCC __________________________________________________________________________________ 32
Coebiere v. Canada [1999] SCC _____________________________________________________________________________ 33
R v. Kapp [2008] SCC ______________________________________________________________________________________ 33
Alberta v. Cunningham [2011] SCC ___________________________________________________________________________ 34

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ABORIGINAL PEOPLES ______________________________________________________________________ 34
Chapter 14 – Aboriginal Peoples and the Constitution _______________________________________________ 34
R v. Sparrow [1990] SCC ___________________________________________________________________________________ 34
R v. Van der Peet [1996] SCC _______________________________________________________________________________ 35
R v. Gladstone [1996] SCC _________________________________________________________________________________ 36
Lax Kw’alaams Indian Band v. Canada & Ahousaht Indian Band v. Canada ____________________________________________ 37
T’silhqot’in Nation v. BC [2014] SCC __________________________________________________________________________ 37
Haida Nation v. BC [2004] SCC ______________________________________________________________________________ 37
Beckman v. Little Salmon/Carmacks First Nation [2010] __________________________________________________________ 37
SCC R v. Powley [2003] SCC ________________________________________________________________________________ 38

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Chapter 15 – Antecedents of the Charter
- Charter is found in the Constitution Act of 1982; was only enacted in 1982, before this were there no rights?
o Before the Charter there was the Canadian Bill of Rights, and unwritten constitution
o But this was just legislation that could be rescinded and amended
- Charter delineates of a number of rights, and s.1 is the limitation of the rights (i.e. justification for violation)
- Britain's constitution is not written; therefore, it is a common law tradition; Australia also does not have a written
constitution à certain rights are deemed to exist even if they are not codified

Roncarelli v. Duplessis [1959] SCC

FACTS:
- Roncarelli was the owner of a café in Montréal who arranged bail for approximately 400 JW arrested for spreading faith
- R and his family had a restaurant and very long-standing liquor license, was a member of JW faith too
- Although he was publicly warned to stop posting bail he continued, and D instructed the chairman of the Quebec
Liquor Commission to cancel R’s liquor licence and make a declaration that no future licence would ever be given
- R was subsequently put out of business; R sued D under legislation for a public official using power not within their
scope for wrongful revocation of a licence to sell liquor
ISSUE:
- Did the Liquor License Act give Duplessis authority to revoke Roncarelli’s licence? NO
RULE:
- Nobody is above the law
- Public officials need to operate within the proper scope of their power, while also acting in good faith and un-arbitrarily
ANALYSIS:
- To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in
a restaurant is beyond the scope of the discretions conferred
o D ordered the revocation of liquor license in an official capacity
o Was done with the intention to punish R; knew that this would destroy R's business, they recognized that for a
restaurant to be successful they needed to serve alcohol
- The provision in the statute says that a decision to deny or cancel a liquor license lies with the ‘discretion’ of the
Commission – this means that the decision has to be based upon weighing of considerations pertinent to the object of
the administration
o The decision made cannot be arbitrary and without purpose to the statute
o It was so extreme that it was found to be a gross mis-use of power and the start of the breakdown of the rule-of-
law (i.e. no one is above the law, is the foundation of laws)
- Administration is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant
purposes of public officers acting beyond their duty à There was a duty to be impartial and act in good faith / integrity
CONCLUSION:
- Held in favor of Roncarelli; this was a gross use of power, breach of implied duty towards public; Respondent has no
immunity to damages regardless of political position; Allowing the Premier to act arbitrarily would violate rule of law

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Chapter 14 – Advent of the Charter
- Advent of the Charter in 1982 switched Canada to be constitutional democracy rather than a parliamentary democracy

Vriend v. Alberta [1998] SCC

FACTS:
- Teacher was fired after declaring his homosexuality, wanted to bring an action for wrongful dismissal
- Alberta’s Human Rights, Citizenship and Multicultural Act did not include sexual orientation as grounds for
discrimination for which a remedy was available under the act
ISSUE:
- Whether the exclusion of sexual orientation from Alberta Human Rights Legislation is unconstitutional? YES
RULE:
- The Constitution and Charter are supreme law
- The Charter applies to government actions and omissions
ANALYSIS:
- The purpose of the legislation is the recognition and protection of the dignity and inalienable rights of Albertans
o Sexual orientation is a common term with an easily discernable meaning so it can easily be added to the provision
o This remedy is appropriate because the people already listed continue to receive protection, and homosexual
groups are smaller than those already benefiting so reading in is hardly intrusive
- The decision to read in sexual orientation was controversial; it was justified as they did not want to repeal all of the
legislation, therefore they thought that the 'reading in' was appropriate as they said that had Alberta known that this
legislation was unconstitutional that they would have included sexual orientation from the start
o This was controversial as the judges are not elected and because of that they should not have been allowed to
change legislation, did not think that judicial rulings should have this kind of power à SCC justified by s.52 CA
o Maybe a more appropriate remedy may have been suspending the legislation and sending it back to parliament to
fix within a set time period
CONCLUSION:
- The omission of sexual orientation from the Alberta’s human rights legislation constituted an unjustifiable violation

Chapter 17 – The Framework of the Charter

Hunter v. Southam [1984] SCC
FACTS:
- A search of newspaper offices was carried out by the Combines Investigation Act (CIA)
- ss.10(1)(3) of the CIA authorized the issuance of search warrants by officials whose functions were to investigate,
without any requirements for reasonable and probable grounds based on sworn material
ISSUE:
- What meaning should be given to the term “unreasonable” in the s.8 guarantee of the Charter?
RULE:
- The Charter should be interpreted with a broad and purposive approach – It is a living tree
- Can use external evidence or previous case law as statutory aids
ANALYSIS:
- The purpose of the Charter: is to guarantee and protect, within limits, the rights it enshrines and to constrain
government action inconsistent with those rights and freedoms
- Took a purposive approach in the interpretation of “unreasonable”
o Could not do statutory interpretation in the same way that it is done for legislation
§ Legislation is made with an eye looking backward, and is much more easily amended
§ The Constitution is made with an eye looking forward, and it is much harder to amend so it needs more care
when being interpreted
o Compared and contrasted to the USA constitution which had a similar provision
§ They said that it was similar wording but because of different histories and reasons for enactment that they
were not similar enough to use USA jurisprudence for the interpretation
CONCLUSION:
- SCC held that s.8 does not give unchecked power; it is meant to stop gov. from doing things that go against rights

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 Section 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
- Two components of Section:
(1) Require that limits be PERSCRIBED BY LAW à something that is a clear legal mandate (GVTA)
o Can be common law or statute (R v. Therens)
(2) Demonstrably justified in a FREE and DEMOCRACTIC society
- What does it mean to be prescribed by law?
o Law must be adequately accessible and sufficiently precision to enable the citizen to regulate his conduct
- Section 1 applies to all sections of the Charter, BUT it does not always apply the same à application will depend on the
(1) context of the case, and (2) deference of the Court to Parliament to solve the problem
Section 1 TEST:
(1) Has a charter right been violated?
o The right or interest must be defined; and must be determined if the right has been interfered with
o BURDEN OF PROOF à on claimant of right
(2) Justification
o Can the right infringement be justified as “limits prescribed by law, reasonable and demonstrably justified”
o BURDEN OF PROOF à lies on the legislature

Greater Vancouver Transit Authority v. Canadian Federation of Students [2009] SCC

FACTS:
- Greater Vancouver Transit Authority refused to allow advertising from the Canadian Federal of Students for an
upcoming election based on advertising policies
- Case was brought under an infringement of freedom of expression; which is usually quite easy to prove à therefore s.1
is used as a method to justify it to not have a floodgate of litigation
ISSUE:
- Was the ad policy “law” and hence capable of satisfying the requirement “prescribed by law” under s.1? YES
RULE:
- A limit will be legislative in nature if it sets out general standards or norms that are intended to be binding and is
sufficiently accessible and precise à also enacted by a government entity pursuant to rule making authority
ANALYSIS:
- To determine if it was law, had to look if it was (1) adequately accessible to the public and (2) if it was formulated with
sufficient precision to enable people to regulate their conduct by it and to provide guidance to those who apply it
- Look if it is legislative or administrative in nature
o Administrative rules are indoor management – meant for internal use and are informal
o To be legislative, policy must establish a norm or standard of general application that has been enacted by a
government entity pursuant to rule making authority
o R v. Therens Rule: if something is prescribed by law, it cannot be arbitrary
- A rule making authority exists if Parliament or legislature has designated power to the government entity for the
specific purpose of enacting binding rules of general application which establish rights and obligations of individuals
CONCLUSION:
- The GVTA policy was considered to be legislative in nature, and was therefore a violation of the Charter

R v. Oakes [1986] SCC

FACTS:
- Section 8 of the Narcotic Control Act provides that if the accused is found in possession of a narcotic, he is presumed to
be in possession for the purpose of trafficking
- This reverse onus provision argued to violate s.11(d) of the Charter, presumption of innocent until proven guilty
ISSUE:
- Can the reverse onus provision be justified under s.1? NO
RULE:
- Formulation of the Oakes Infringement Test for s.1 of the Charter

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ANALYSIS:
- Two criteria for a particular limit is reasonable and demonstrably justified in a free and democratic society
(1) The limit first has to be prescribed by law (R v. Therens, GVTA)
(2) Justifiable in a free and democratic society (R v. Oakes)
§ This question had never been asked before this case, so the SCC set out to interpret it
§ Knew that Charter rights are not absolute à b/c s.1 infringements and cannot infringe on other’s rights
§ Need a high standard of proof and very strict test to justify it, because it is serious to take away rights
§ Standard is not quite BRD, but is also higher than BoP, the probability changes based on the case
CONCLUSION:
- Here, the objective of protecting society from the ills associated with drug trafficking was pressing and substantial BUT
there was no rational connection à Therefore, was found that the Charter violation could not be justified

Oakes Test (s.1 infringement justification):

(1) The objective must be of sufficient importance; meaning there must be a pressing and substantial objective
(2) The means chosen are reasonable and demonstrably justified (proportionality test)
a. Measures adopted are rationally connected to objective
• Needs to advance the purpose of the legislation through a logical link
• Cannot be arbitrary, unfair, or irrational
b. Must be minimally impairing on right or freedom limited
• Is there another means that impairs less
• ** Does not need to be the least impairing, just needs to be reasonable (Irwin Toy)
c. Must be proportionality between the effects and the objective
• Weigh the salutary effects against the deleterious effects (Dagenais)
** Most common place for legislation to fail

Edmonton Journal v. Alberta [1989] SCC

FACTS:
- Edmonton Journal challenged s.30 of the Alberta Judicature Act which limited the publication of information arising out
of the court proceedings in matrimonial disputes, which is seemingly against the 'open court principle'
ISSUE:
- What kind of approach should be used to apply the Charter?
RULE:
- A contextual approach should be used to consider the value of the right and the limitation in context of the situation
ANALYSIS:
- Two approaches to charter application: contextual and abstract
- Contextual: recognizes that a particular right or freedom might have different values in different context
o Is the method of choice for the SCC currently
o Can’t balance one value broadly, while looking at a right that’s being violated in an individual sense: individual
right or freedom may have different meanings in different cases
o Justification has to take place as per context
- Abstract: gives value to the right and assess the relative importance of the competing values in the abstract
CONCLUSION:
- Here the conflict is the right to privacy of litigants/freedom of expression in court vs. the right of the public to an open
court process – was a split decision by SCC

Irwin Toy Ltd. v. Quebec [1989] SCC

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 à Exceptions related primarily to magazines, and store display
ISSUE:
- Does a complete ban on advertising impair the freedom of expression as little as possible (minimal impairment)? YES
RULE:
- Court may defer to legislature in certain situations à Legislation will be void for being overly VAGUE

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ANALYSIS:
- Deference to government by the court in the s.1 justification – in this case the court creates two categories:
(1) Vulnerable groups – more deference to the government as they are acting on behalf of a vulnerable group
(2) Singular Antagonist Case – less deference when dealing with liberty of an individual and the government
** Also, when trying to balance limited resources OR weigh competing scientific evidence à the court is less likely to
heavily weigh in, common deference
- There are three ways that courts can defer to legislative judgment/power the standard of justification under s.1 test:
(1) Deference to relevant findings of fact by legislature i.e. lowering standard of proof
(2) Deference to legislatures accommodation of competing values or interests
(3) Lowering the standard of justification under s.1
- On vagueness: not practical to seek absolute precision in statute; a law would fail prescribed by law test only where
“there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in
a wide set of circumstances” à requirement of an intelligible standard
CONCLUSION:
- There were competing evidence so deferred to legislatures reasoning of reports

Section 33:
Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may
be, that the Act or a provision thereof shall operate notwithstanding a provision included in s.2 or 7 to 15 of this Charter
- “The Override” or Notwithstanding Clause allows laws to be insulated from certain challenges on Charter grounds
- Can be used to violate s.2, s.7-15 only; and is only valid legislation for 5 years (sunset clause)
- In order to be used it must fit within 4 categories
(1) A form of political protest
(2) An exercise of risk aversion when constitutional uncertainty about how protected rights would be interpreted
(3) An exercise in risk aversion as a result of uncertainty about how s.1 arguments would be interpreted
(4) An expression of political disagreement with Supreme Court jurisprudence (i.e. interpretation of the Charter)

Chapter 18 – Application
Section 32:
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
- Charter clearly applies to all statutes passed by Parliament or Provinces; also, applies when there is a non-government actor
implementing a government action/policy, or an entity that’s nature is governmental
- Problems of applications come up when there is uncertainty if there is a government actor /or/ action

RWDSU v. Dolphin Deliveries Ltd. [1986] SCC

FACTS:
- Union members were engaged in a labour dispute with their employer, Purolator, and they wished to picket Dolphin’s
premises on the grounds that the company was related to Purolator and performing work for them during the strike
- Dolphin sued the Union and BC Court issued an injunction to restrain the picketing, the Union appealed the injunction
ISSUE:
- Is the court ordered injunction a violation of freedom of expression? NO
RULE:
- Charter does not apply when the parties are private citizens engaged in a purely private matter
- Judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental
values enshrined in the Constitution

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ANALYSIS:
- Charter does not apply: to actions between private parties at common law (THIS IS THE LINE)
o This would open the flood gate and would make too many things subject to Charter
o Need something more than mere court involvement
o In Quebec, because of the civil code (rather than common law/case law) on face value this looks like the Charter
would apply in more cases than in other parts of the country because of more ‘written laws’
o Charter will apply to common law in private or public litigations only in so far as the common law is the basis for
some government action which allegedly infringes on a guaranteed right/freedom
- Applies to legislative, executive, and administrative branches but NOT the judiciary
CONCLUSION:
- The Charter does not apply in this case, therefore there is no violation to freedom of expression

Governmental Action / Actors:

- If an entity is part of government, then the Charter will apply to ALL of its actions
o Includes the executive branch, ministers, officials employed in government departments, police officers, other
public agencies or agents
o The term ‘government’ in s.32(1) does NOT include the judiciary
- What else is considered a government action?
o Colleges, Airports, Police, Public schools (maybe?)
o Applies to government actions based on the common law (Dagenais)
o Entities that are government in nature (Pridgen), or the government exercises regular control over (GVTA)
o Crown agencies (i.e. CBC), or other such entities, that are not themselves government actors but are
implementing a policy or program of the government or executing statutory powers (Eldridge)
- What is not considered a government action?
o Unions, Universities (McKinney), private security guards
o Does not apply to court orders in private actions based on common law; but court must interpret common law in
keeping with Charter values (Dolphin)

McKinney v. University of Guelph [1990] SCC

FACTS:
- Faculty members and library staff challenged the mandatory retirement policies of four Ontario universities
- Argued that the policies violated the equality guarantees in s.15 of the Charter by discriminating based on age
ISSUE:
- Does the Charter apply to universities? Are the universities government actors under s.32 of Charter? NO
RULE:
- If the government has routine and regular or substantive control over an entity, then it will be seen as a government
actor and the Charter will apply to it
ANALYSIS:
- Although universities function pursuant to statutory authority, they do not perform a quintessentially governmental
function à Universities are creatures of statute, but this is NOT enough to make it subject to the Charter
- Universities are limited in what they can do by regulations or because of their dependence on government funds, BUT
university decisions are not government decisions à actions of universities are taken purely under their own initiative-
not “statutory compulsion”
DISSENT: Sets out three tests to identify what kinds of bodies ought to be constrained by Charter:
(1) Control test – asks whether the legislative, executive, or administrative branch of government exercises general
control over the entity in question
(2) Government Function test – whether the entity preforms a traditional government function or a function that in
more modern times is recognized as the responsibility of government
(3) Statutory Authority test – whether the entity is one that acts pursuant to statutory authority specifically granted
to it to enable it to further an objective that the government seeks to promote in the broader public interest
CONCLUSION:
- The university did not meet the test for “routine and regular control”, they are not considered a government actor and
then this is not a case where the Charter would apply

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Pridgen v. University of Calgary [2012] ABQB
FACTS:
- Two undergraduate students were found guilty of non-academic misconduct by the University’s General Faculties
Council Review Committee for posting negative comments on Facebook group dedicated to an unpopular professor
- Both students were placed on probation; the students applied for judicial review to set aside the decision in the
grounds freedom of expression was violated
ISSUE:
- Does the Charter apply to the University disciplining process? YES
RULE:
- Review of categories for Charter application (not a binding decision, but highly persuasive in AB)
ANALYSIS:
- McKinney did not rule out Charter applicability to universities for all purposes
o Distinguished from McKinney because this was not dealing with a strictly university policy, and there was other
recourse available in the McKinney case i.e. human rights commission
- There are two ways to determine whether the Charter applies to an entity’s activity:
(1) by enquiring into the nature of the entity, and (2) by enquiring into the nature of the particular activity in question
- Five broad categories of government or government activities to which Charter applies:
(1) Legislative enactments
(2) Government actors by nature (i.e. job is inherently governmental)
(3) Government actors by virtue of legislative control (i.e. carrying out government work, GVTA)
(4) Bodies exercising statutory authority (Eldridge) à think coercive power and professional bodies
(5) Non-governmental bodies implementing direct governmental objectives (Eldridge)
- The University argued the Charter did not apply as they were not being government actors because of…
o Institutional independence = they are supported by the government funding/legislation, the government does
not have operational input, the university should have autonomy
o Academic freedom = the concept of free flow of ideas, similar idea to that underlying freedom of expression,
necessary to advance learning/research/ideas
- Court said that the Charter is not inconsistent with the arguments made by the University, and the Charter is the
underpinning of Canadian society; therefore, the University should be following the Charter
CONCLUSION:
- Determined that Charter would apply in this case, therefore the Committee’s decision violated the students’ s.2(b)
Charter right to freedom of expression and was not a reasonable limit prescribed by law

Governmental Acts:
- These are groups such as administrative tribunals and boards who are implementing the Charter
- The Charter also applies to non-governmental actors exercising coercive statutory powers

Eldridge v. BC [1997] SCC

FACTS:
- Hospitals in BC deliver services under the Hospital Insurance Act, which requires the government to reimburse hospitals
for “medically required services” à sign language interpretation is not covered
- Three individuals who were born deaf sought a declaration that the failure to provide funding or sign language
interpreters when they received medical services violated s.15 of the Charter
- According to the Medical and Health Care Services Act, the power to decide whether a service is ‘medically required’ is
delegated to the Medical Services Commission
ISSUE:
- Is the Medical Services Commission and Hospitals subject to the Charter? YES
RULE:
- All actions of government actors are subject to Charter scrutiny but where there is a non-government actor the Charter
applies only to activities that deal with implementation of government policy
- If private entity is implementing a specific government policy program, the Charter will apply to that implementation of
that activity; government cannot sub-delegate duties away without Charter following it

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ANALYSIS:
- The actual source of the violation is the way that those administrative decisions are made by the hospital and the
Medical Services Commission in the exercise of discretion – but is the hospital a government actor?
o The hospital is not a government actor (if it was, all their actions would be subject to Charter scrutiny) – it’s a
private entity – they are not routinely and regularly controlled by government
o The hospital is, however, implementing government policy (provision of medical services) – only those actions
that are implementing specific government policies will be subject to Charter scrutiny
- Charter may be found to apply to an entity on one of two bases;
(1) It may be determined that the entity is itself “government” for the purpose of s.32
(2) With respect to a particular activity that can be ascribed to the government
- It’s not a matter of FORM it’s a matter of SUBSTANCE – if the action is truly governmental then Charter applies
CONCLUSION:
- Even though the hospital is not a government actor, it is implementing government policy and thus subject to Charter

Governmental Inaction:
- If a Charter right or freedom requires the fulfillment of a positive obligation, the Charter will apply to inaction on the
part of the government - Charter says "all matters" which includes inaction

Vriend v. Alberta [1989] SCC

FACTS:
- See above
ISSUE:
- Is the omission of ‘sexual orientation’ a violation of the Charter (even though it is an omission not an act)? YES
RULE:
- The Charter applies to both acts and omissions of the legislature
- Under-inclusive government laws or programs can be subject to Charter review
ANALYSIS:
- Section 32 is worded broadly enough to cover positive obligations on legislature à i.e. all actions and inactions
- Alberta argued:
o A deliberate choice not to legislate should not be considered government action; puts forward an argument of
legislature deference (i.e. they specifically omitted to place sexual orientation)
- If Charter did not apply to omissions, there would be a Charter loophole à just word a statute to omit something
o It would be a question of form, not substance; illogical and unfair

Chapter 25 – Enforcements of Rights

Standing: One of the threshold questions is whether the party bringing a Charter claim has standing to do so
(1) Private Interest Standing: MOST COMMON type, the government actor/act/inaction directly effects the claimant
§ Your Charter rights are at issue and you’re arguing that they have been infringed (Eldridge)
(2) Public Interest Standing: Organization that wants to bring a suit for benefit of the public (controversial) 3-part test
§ Must be a serious issue, and
§ Directly affected/genuine interest in the case, and
§ Reasonable and effective manner of getting the case before the court (Downtown East-side Sex Workers)
o Used to be that this had to be the ONLY way to get the case to court
(3) Collateral Standing: In concurrence with civil/criminal proceedings (Big M Drug Mart)
§ If you are charged under a statute (or are able to be charged) that gives you an opening to challenge the
statute à if you are a corporation you must actually be charged
§ If you are subject to a law (as an individual), you have standing to raise a claim you may not otherwise have
(4) Intervener Standing: Law suit already going on, not full parties in the case; limitations to their involvement
§ Court can grant leave to intervene on a case that someone else has initiated (you don’t have to meet all
the standards in Public interest Standing)

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Remedies: Is how the Court works to rectify a violation, can have remedy under s.24 Charter or s.52 of the Constitution
- If the violation is from a government act/action, then the remedy comes from s.24 Charter
- If you are challenging a statute/legislation, then the remedy comes from s.52 Constitution Act
o Usually is only one type of remedy or the other; BUT there are some cases that may be able to have a
combination remedy of both types (Ferguson)
- We need to have a variety of remedies for Charter cases because we are balancing rights
o Need to balance the RESPECT FOR THE CHARTER and the RESPECT FOR LEGISLATION (Schachter)

SECTION 52:
The Constitution is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, or no force or effect
- Applies to challenges to statute/legislation on the basis of a Charter violation (also the remedies for Division of Power)
- Sometimes entire legislation being rendered invalid is too broad a remedy so there are alternate ways of providing relief
o Strike down – whole statute is invalidated
o Severance – sever part of the legislation and strike it down (common remedy)
o Reading Down – reading out something as if it isn’t in the statute
o Reading In (controversial) – when legislation is under-inclusive, reading something in as if it was there all along
§ Common when the group benefitting is larger than the group excluded; just extending coverage of rights
§ Only applicable when;
(1) the legislative objective is clear and adding to it would further the objective more than striking down
(2) adding to the legislation would not constitute an unacceptable intrusion to legislative domain
(3) does not involve a budgetary decision such to change the nature of the particular legislative enterprise
o Constitutional Exemption (rarely applied) – the law remains in force, but is declared inapplicable in this situation
§ i.e. declaring claimant exempt from the Government Act/Action (Ferguson)
- Once the Court decides on which remedy, they can order temporary suspension of declaration of invalidity which delays
the effect of the finding of the invalidity so that government can amend the legislation
o If parliament has not fixed the legislation in the meantime, when the suspension is up the legislation automatically
becomes invalid
o Supposed to be used for economic reasons, not human rights cases (Charaoui – security certificates)
o Status quo continues until the suspension is up, but there is supposed to be good faith that the legislation is not
enforced during the suspension time

Schachter v. Canada [1992] SCC

FACTS:
- The Unemployment Insurance Act provided mothers who had given birth with 15 weeks of maternity benefits and
adoptive parents with 15 weeks of leave with the benefits to be shared between them
- A father whose claim for ‘paternity benefits’’ following the birth of his son was dismissed as not falling within the
provisions of the Act – he challenged the decision as a violation of his rights under s.15 of the Charter
ISSUE:
- Was this discriminatory? If so, what should the remedy be? Sever, strike down, or read in? YES, strike down
RULE:
- When determining the appropriate remedy, the Court considers certain factors;
o Remedial precision, interference with legislative objective (budgetary impact), how the remaining legislation is
affected (“ripple” effect), and the size of the group to be added
ANALYSIS:
- Courts can strike down laws only to the extent of the inconsistency using the doctrine of severance, or reading down
o With severance the inconsistency is defined as something improperly included in the statute, which can be
severed and struck down (little interference with legislature)
o With reading in, the inconsistency is defined as what the statute wrongly excludes rather that what it wrongly
includes
- First step in choosing a remedial course under s.52 is defining the extent of the inconsistency which must be remedied
o The manner in which the law violates the Charter and in which it fails to be justified under s.1 is critical

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- Determining What will be Struck Based on Oakes Test
o Where the purpose of the legislation is pressing and substantial, but the means used to achieve this objective
are not rationally connected, the inconsistency to be struck down will be the whole of the portion of the
legislation which fails the rational connection test
o Where the second and/or third elements of the proportionality test (minimal impairment & proportionality) are
not met, there is more flexibility in defining the extent of the inconsistency – remedy here would be to read
words in, sever, strike down, or read down
- Deciding whether severance or reading in is appropriate
o VERY similar remedies – they are both simply alleviating an inconsistency in the law (same purpose)
o Consider if the group you're adding in is smaller than the group that already has the benefit à smaller means
more likely to be added in
§ HOWEVER, even if group to add in is much larger, doesn’t mean they won’t be added in
o Ask whether to read in or sever would the significance of the part which would remain is substantially changed
when the offending part is excised – need to look how the untouched portion of law has changed
o If the remaining portion is very significant, it strengthens the assumption that it would have been enacted
without the impermissible portion
- Whether to temporarily suspend the declaration of invalidity
o Final step is to determine whether the declaration of invalidity of that portion should be temporarily suspended
(can suspend until Parliament has filled the void)
o This approach is appropriate where the striking down of a provision poses a potential danger to the public or
threatens the rule of law
o A delayed declaration allows a state of affairs which has been found to violate standards embodied in the
Charter to persist for a time despite the violation
o Reading in is sometimes a better remedy because it results in an immediate fix
- Application to this case
o The right violated here is a positive right (right to equal benefit of the law)
o To read in natural parents to this provision would constitute a substantial intrusion into the legislative domain,
this intrusion would be substantial enough to change potentially the nature of the scheme as a whole
CONCLUSION:
- The provision should be declared invalid, but the declaration should be suspended to allow the legislature to meet the
constitutional requirements (would have struck it down but it had already been changed by the time of the decision)

Vriend v. Alberta [1989] SCC

FACTS:
- See above
ISSUE:
- Is the omission of ‘sexual orientation’ a violation of the Charter (even though it is an omission not an act)? YES
RULE:
- Section 32 applies to all matters when: (1) Government infringes on rights through positive acts, and (2) When the
government fails to protect certain Charter rights when legislation is under-inclusive (omissions)
ANALYSIS:
- Vriend was seeking for sexual orientation to be read in à Didn’t want the legislation struck or read down
- There was an argument that sexual orientation was PURPOSELY left out because it was discussed by parliament
- There were no concerns regarding budgetary issues because reading this in does not raise the risk of the government
having to pay a lot
- Question was if the court should strike down or read in?
o It is inconceivable that parliament would have preferred to have no human rights legislation rather than one
that included sexual orientation, therefore consistent with respect of the legislature
o Not found to have a conflict between religion and sexual orientation, therefore cannot accept that reading in
would be inconsistent with the respect of the Charter
- Need to take into consideration; remedial precision, budgetary implications, effects on the rest of the legislation,
interference with legislative objectives
o Precision issue was centered around if the term sexual orientation could be read in without having a definition,
SCC decided the common sense meaning spoke for itself

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 SECTION 24:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of
competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances
- Applied in cases where infringements are result of actions by public officials, ONLY AVAILABLE TO CHARTER CASES
- Main goal of s.24 remedies it to compensate/correct a situation i.e. make victim whole again
o The key consideration is the context – there is lots of discretion available in deciding what remedy to grant
- Kind of remedies include declaration of invalidity, monetary damages, injunctions à are INDIVIDUAL remedies
o Injunction = force the thing to stop immediately that is causing the violation
o Declaration = a judicial statement that it is recognized that your rights are being violated, but nothing more
o Monetary remedy = damages
- Jurisdiction to make Charter remedies;
o Provincial superior courts have jurisdiction to make Charter remedies
o Tribunals can make remedies, unless it is clear that legislation bars it – presumption is that tribunals that answer
legal questions can also give remedies

Chapter 19 – Freedom of Religion

- The BNA Act provided some protection for religious diversity within the provinces, by establishing certain rights for
minority religious schools
- Saumur v. Quebec [1953] SCC:
o SCC struck down a bylaw that forbade distribution of literature in streets of Quebec City without prior consent
à was a bylaw that was intended to limit the activities of Jehovah's witness community
o Religious freedom has been recognized as a principle of fundamental character
o Provinces lack the authority under constitutional division of powers to restrict religious freedom and other
fundamental rights - "dimension of this interest are nation-wide"
- Chaput v. Romain [1953] SCC:
o The QB provincial police broke up, without a warrant, an orderly religious meeting of Jehovah’s Witnesses, SCC
found that this breached the CC prohibition against obstructing a minister who is conducting a religious meeting
o SCC stated that there is no state religion in Canada – all denominations enjoy the same freedom of speech and
thought
- The protection of freedom of conscience and religion in the Charter is now a principled right

SECTION 2(a):
Everyone has the following fundamental freedoms; (a) freedom of conscience and religion
Freedom of Religion:
- Section 2(a) of Charter describes guarantee of freedom of conscience and religion as entailing the liberty to hold, and live
in accordance with, spiritual or other fundamental beliefs without state interference
- Religious freedom has two dimensions: (Big M)
(1) The freedom to practice religion without interference by the state (freedom to religion)
(2) The freedom from state compulsion to follow a religious practice (freedom from religion)
- The freedom does not simply protect against state coercion in matters of religion or conscience, it also requires that the
state treat religious belief systems or communities in an equal or even-handed manner i.e. neutrality (Saguenay)
- Traditionally VERY broad right, with NO internal limitation on the scope (most cases decided in s.1 à see Ktunaxa)
Freedom of Conscience:
- Was thought to be a part of Religion, but now recognized as an alternative to religious freedom
- While freedom of religion protects fundamental religious beliefs, freedom of conscience extends protection to
fundamental beliefs that are not part of a religious belief system, to non-spiritual morality
- Maurice: was an inmate in federal prison and having vegetarian meals for religious reasons, he later stopped practicing
his religion but wanted the vegetarian meals for conscience reasons; the prison refused while the court held that they
had to provide them à Only case that really deals with this topic

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R v. Big M Drug Mart [1985] SCC
FACTS:
- Big M was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act
- Section 4 of the Act contains the basic prohibition against any work or commercial activity upon the Lord’s day
- Since Big M was charged under the Act, they had collateral standing to bring a Charter violation argument
ISSUE:
- Is the Act a violation of the Freedom of Religion? YES
RULE:
- Freedom of religion includes the freedom from being coerced into practicing a religion (freedom from religion) AND the
right to manifest your belief (freedom to religion)
- Any law purely religious that denies rights must surely infringe on religious freedom à Requirement of state neutrality
ANALYSIS:
- Argued that Act violated s.2(a) – for not being religiously neutral, it imposed religion on people
- Crown tried to argue that original purpose may have been religious, but now it is a secular purpose
o Court was not persuaded by the 'shifting purpose' because this was not the parliamentary intent at the time it
was enacted, and that is what is important for purpose of legislation
o Cannot create a legal fiction about what the purpose is now vs. at enactment
- Have to look at the purpose and the effects of the legislation à look at purpose first, if there is a problem here you
never look to the effects (effects cannot save an invalid purpose)
- Section 2(a): Positive and Negative freedoms
o FREEDOM TO RELIGION i.e. entertain, declare, and manifest religious and non-religious beliefs
§ Allowed to practice your religious beliefs
o FREEDOM FROM RELIGION i.e. coercion or constraint
§ Cannot impose religion on people
o Subject only to limitations such as public safety, order, health, or morals, and the rights and freedoms of others
A

- Because the law had a religious purpose, this was not a pressing and substantial objective for the purpose of the s.1
analysis – the Act fails at the justification stage à the effect did not matter
o Crown tried to argue that everyone needs a day off, and most people are Christian so it was practical to give a
secular day off on a day that most people will want to take off anyways
o Court said this is disingenuous – does not make any sense, you cannot acknowledge you are violating rights to
further a secular ideal, this was a side effect not the purpose (also said this was colorable)
- Remedy: It is appropriate to strike down the legislation altogether
CONCLUSION:
- The Act is coercive and forces a majority religious practice on religious minorities and non-believers à Because of the
religious purpose, the non-religious effect did not matter, it was a clear Charter violation

Mouvement Laique Quebecois v. Saguenay [2015] SCC

FACTS:
- There was a prayer being read at the beginning of every day (i.e. city council meetings), a man objected that this was
imposing religion on him, and this was discriminatory as he could not participate in part of the meeting (separate issue)
ISSUE:
- Does the preamble of the Charter establish the moral source of values that the Charter protects? NO
RULE:
- The preamble in the Charter does not reflect a supremacy of God – the state has a duty of neutrality
- A law with a religious purpose cannot be justified
ANALYSIS:
- Preamble; "Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law"
o Court was asked to interpret the preamble à Says what was meant here was a political theory behind the
structure of Canadian politics, not created to support faith, one over others or in general at all
o This was not meant to supersede s.2(a), further s.2(a) is the ONLY religious provision that must be followed

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- Respondents argue that the reference to the supremacy of God in the preamble to the Canadian Charter establishes
the moral source of the values that charter protects – therefore, a prayer that refers to the same source cannot
interfere with anyone's freedom of conscience and religion
o SCC disagrees the reference to the supremacy of God in the Charter cannot lead to an interpretation of freedom
of conscience and religion that authorizes the state to consciously profess a theistic faith
- The Supremacy of God, Human Dignity and the Charter of Rights and Freedoms:
o "The reference to the supremacy of God in the Charter should not be construed so as to suggest one religion is
favored over another in Canada, nor that monotheism is more desirable than polytheism, nor that the God-
fearing are entitled to greater rights and privileges than atheists or agnostic. Any of these interpretations would
be at odds with the purpose and orientation of the Charter, as well as with the specific provisions regarding
freedom of religion and conscience under s.2"
CONCLUSION:
- No moral course of value that the Charter protects, was written based on the political climate à No supremacy of God

Syndicate Northcrest v. Amselem [2004] SCC

FACTS:
- Mr. Amselem and other Orthodox Jews lived in a co-op condo complex; in order to participate in a religious holiday,
they needed to construct a Succot for 9 days; They did so on their balconies which was against the condo policies as
they were required to keep a uniform appearance
o When the group moved into the building they signed co-ownership contracts, which had this prohibition clause
- The Condo building ordered them to be taken down; Amselem complied but the following year decided to take a stand
- The Condo building sought an injunction to stop the Succot’s from being built
- While case was being heard the Condo building brought evidence of the religious obligations during this holiday
o This was not well received at the SCC because they did not want to have objective benchmarks on religion and
did not feel comfortable having a secular court impose religious rules
ISSUE:
- Whether erecting succahs is a protected activity under s.2(a) [in this case Quebec Charter]? YES
- Can the infringement be saved by s.1? And did they waive their rights through contract? NO
RULE:
- Formulation of the test for Freedom of Religion for s.2(a) of the Charter à Definition of Religion
ANALYSIS:
- Religion: “defined broadly typically involves a particular and comprehensive system of faith and worship, also involves
the belief in a divine, superhuman or controlling power. In essence, freedom of 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 Charter did not apply in this case because this was a property dispute being settled under the common law (court
injunction); there was no government action/actor
o Quebec Charter of Human Rights was found to apply though – so they made a test for individual provincial
Charters and decided that this test would apply to the Canadian Charter as well
- Once a person shows that their freedom of religion has been triggered the court must assess if there is enough
interference to constitute an infringement à the Charter prohibits infringements that are more than trivial and
insubstantial
- SCC also determined that to waive a Charter right the waiver must be; (1) unconditional, (2) voluntary, (3) explicit
DISSENT:
- Bastarache à claimant must bring proof of the precepts of the religion, not completely subjective beliefs, there must
be some objective proof because there is some collective aspects to religion
- Binnie à nothing in the contract that was intentionally discriminatory, so the tenant is required to know what their
religious needs are, and they should have chosen a building that could accommodate them, should be held to contract
CONCLUSION:
- SCC determined that the s.2(a) rights were infringed, and that the infringement was not saved by s.1; Also, that the
rights were not waived by signing the contract for co-ownership

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 Section 2(a) TEST: (Amselem)
(1) Person must show a SINCERE RELIGIOUS BELIEF with a NEXUS (connection) TO RELIGION
i.e. sincerely believes in order to connect with the divine or as a function of spiritual faith person has to do this activity
o If both of these are met, the freedom of religion is invoked
§ It’s subjective and does not have to be practiced by everyone; nor does it have to be obligatory
§ The claimant can bring expert testimony as this would be evidence of what their religious beliefs are, and
showing that they are following the objective rules of the faith that they subjectively believe in
o Respondent cannot bring expert testimony; this would pit religion against itself in a secular court
o How to determine if there was a 'sincere belief';
§ Look at credibility – do they do things that support that this is their subjective belief?
§ Look if it is consistent with other practices of the person but not too far because people can and do change
(2) Must show that the infringement is more than trivial and insubstantial in nature (Ktunaxa – refined this)
o This is an objective standard
o Protects the freedom to worship NOT the spiritual focal point of worship

Multani v. Commission Scolaire Marguerite-Bourgeoys [2006] SCC

- Multani was a baptized Sikh practitioner; Sikhs often carry a religious symbol, a kirpan, which resembles a dagger
- Issue came up when Multani went to high school, and kirpan was confiscated for violating the no weapon policy
- SCC decided that;
o The Kirpan is NOT a weapon à it is first and foremost a religious symbol
o Commission policy was to achieve a level of reasonable safety not COMPLETE safety, so the kirpan is not the
only thing at school that could potentially cause harm (but was the only thing totally banned)
o SCC stated that we should adopt a model of reasonable accommodation where the school must accommodate
the religious belief to the point of causing no undue hardship
- This case was decided on basis of s.1 analysis – specifically at the minimal impairment stage;
o This is as Multani had offered to compromise and make the kirpan less ‘dangerous’, which the commission
denied, showing the complete ban was NOT minimally impairing to Multani’s religious rights

Alberta v. Hutterian Brethren of Wilson Colony [2009]

FACTS:
- Alberta wanted to institute a universal photo requirement for driver's licenses to make a digital data base of all photos
- The Brethren objected on the basis on a religious believe against having photographs taken – the Province proposed
accommodations to which the Brethren said it's not the data base it is the actual taking of a photo that is the problem
ISSUE:
- Was the photo database a violation of the Brethren’s s.2(a) rights? If so, was it justified by s.1? YES
RULE:
- Application of the Oakes test to s.2(a) right to religious freedom
ANALYSIS:
- Province conceded that there was an infringement to s.2(a) – but that it could be justified by s.1
- Court was not happy with this because they wanted to have arguments about the nature of the infringement; and
whether this is this an individual right or a collective right
o Subsequent cases have concluded that there is a collective aspect to freedom of religion
- This case focused on the justification of an infringement; found a pressing/substantial objective and rational connection
- On minimal impairment à in order for it to pass this part of the test the government must show that there are no
alternative less drastic means to achieve the objective
o SCC decided that reasonable accommodation model from Multani did not fit here because we are talking about
a regulation, in which cases we should apply the strict Oakes test
- On proportionality of effects à it was found that the salutary outweighed the deleterious effects
DISSENT:
- Focused on the need to recognize the collective nature of religious beliefs, and that the minimal impairment test was
applied too strictly – there were ways that the Brethren’s rights could have been accommodated in the new scheme
CONCLUSION:
- The Brethren’s s.2(a) rights were found to be justifiably infringed by the Province

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Ktunaxa Nation v. BC (Minister of Forestry) [2017] SCC
** Only case that has not been successful in proving a s.2(a) violation – SCC reconfigured the test to exclude Ktunaxa rights
** Also, first SCC case that was a s.2(a) claim for Aboriginal religious beliefs
FACTS:
- The Ktunaxa’s traditional territories include an area called Qat’muk in southeastern British Columbia à the area is
spiritually significant as home to grizzly bears, and Grizzly Bear Spirit “a principal spirit within Ktunaxa religious beliefs”
- In 1991 Glacier resorts filed a formal proposal to build a year-round ski resort in Qat’muk
- For more than two decades, Glacier Resorts negotiated with the BC government and the Ktunaxa, early in the process
the Ktunaxa informed Glacier Resorts of the spiritual significance of Qat’muk
- Glacier Resorts attempted to make accommodations in the plans for the Ktunaxa people, but they were not satisfied
with them changes made – stated that the development would irrevocably impair the religious beliefs and practices
- In 2009 the Ktunaxa issued the Qat'muk Declaration that which prohibited development in their territory
- In 2012 the Minister signed a Master Development Agreement which allowed the project to proceed, despite Ktunaxa
ISSUE:
- Did the Minister’s decision violate the Ktunaxa’s freedom of conscience and religion? NO
RULE:
- Added the external limitation to the scope of s.2(a)
- It’s NOT the state’s duty to protect the object of such beliefs (the spirit), rather it’s the states duty to protect
everyone's freedom to HOLD such beliefs and to manifest them in worship and practice
- Protects the freedom to worship NOT the spiritual focal point of worship
ANALYSIS:
- Issue 1: was there a freedom of religion violation?
o Was a separate argument from s.35 claim about consultation (found there had been sufficient consultation)
o Argued that the resort's location would drive away the grizzly bear spirit and render practices futile
o Stated minister did not considered freedom of religion à response was that this is outside the scope of freedom
of religion and thus did not need to be considered
- Scope of s.2(a) is to protect "the right to entertain such religious beliefs as a person chooses, the right to declare
religious beliefs openly and without fear of hinderance or reprisal, and the right to manifest religious belief by worship
and practice or by teaching and dissemination" (Big M Drug Mart)
o Two parts – freedom to hold beliefs and freedom to manifest those beliefs
- To establish an infringement of the right to freedom or religion claimant must demonstrate (1) sincere believe or
practice that has a nexus with the religion, (2) that the impugned state conduct interferes in a manner that is non-trivial
or not insubstantial (Multani)
o Confirmed that step 1 is SUBJECTIVE, and step 2 is OBJECTIVE
- Application to this case:
o The Ktunaxa must show that the Minister's decision interferes with their freedom to believe in the grizzly spirit
or freedom to manifest that belief à not able to prove either
o The claim in this case is that the Charter protects the presence of the Grizzly Bear spirit – this is a novel claim
which invites the court to expand the scope of s.2(a) à court declines the invitation
o Duty of the state is not to protect the objects of beliefs; rather it is to protect everyone's freedom to hold such
beliefs and to manifest them in worship, but does not protect spiritual focal point of worship
o An extension of s.2(a) in this manner would put deeply personal beliefs under judicial scrutiny – this would
require the state and its courts to assess the content and merits of religious beliefs
§ The court in Amselem specifically choose to avoid this as it would be inconsistent with the principles
underlying freedom or religion (i.e. state neutrality)
o Argument that there is a communal aspect to religion which the state must protect is also not successful
because the communal aspect of s.2(a) is also constrained to not extend beyond the freedom to have beliefs
and manifest them
- Prof Notes: believes that the rights should have been recognized, and were likely not because the court did not
understand or believe the Ktunaxa’s claim
o Could have had the same outcome based on the s.1 analysis
CONCLUSION:
- Ktunaxa’s rights were not found to be breached; SCC added an external limitation to the scope of s.2(a)

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Law Society of BC v. Trinity Western University [2017] SCC
FACTS:
- TWU is an evangelical Christian University whom has sought to open a law school that would require its students and
faculty to adhere to a religiously covenant prohibiting "sexual intimacy violates the sacredness of the marriage between
a man and women"
- Law society of BC is the regulator of the legal profession in BC, authority as per Legal Profession Act; decided to not
recognize TWU’s proposed law school
ISSUE:
- Was the LSBC's decision to not recognize TWU's law school as per the Charter arguments reasonable? YES
RULE:
- When dealing with administrative decisions as opposed to judicial decisions, and looking at s.1 justification, there is
greater deference to the decision maker in such cases (i.e. court is more inclined to agree with decision maker)
- Step 3 of proportionality test (i.e. balancing effects) is the MOST common place for these cases to be decided
ANALYSIS:
- There was an issue with standing here à universities DO NOT have private interest standing for Charter arguments
o The SCC opted to ignore the fact that this was a university and they approached it as a the ‘future students who
would have their right infringed’
- Was found that the Freedom of Religion was invoked in this case, as there was a sincere belief, with a nexus to religion;
that these students needed to study at a religious university with a religious covenant, as at TWU, in order to connect
and fulfill their religious obligations
- The infringement was also found to be more than trivial and insubstantial as it limited education options
- Therefore, this case turned on the s.1 analysis (because this was an administrative decision subject to judicial review,
they used a slightly different framework – which we are ignoring)
- The s.1 analysis focused on the third step of the proportionality test, the balancing of deleterious and salutary effects
o The salutary effects were the student’s having their ‘preferred’ learning environment
o The deleterious effect was that this would exclude the LGBTQ community from attending TWU
- Therefore, the infringement was justified
CONCLUSION:
- The decision made by the LSBC “gives effect, as fully as possible to the Charter protections at stake given the particular
statutory mandate”; therefore, the decision was reasonable à Held in Favor of the LSBC, TWU law school is denied

Chapter 20 – Freedom of Expression

- There was nothing about individual liberties in original constitution
- Switzman v. Ebling: using the division of powers analysis to protect rights – In some cases, parliament should be denied
power to limit free speech
- The Canadian Bill of Rights: provided some protection of rights, but the problem was that it froze the rights at the time
it was written (1916) – wasn’t a “living tree”
- Now Freedom of Expression is considered a Fundamental Freedom codified in the Charter
- R v. Keegstra (McLachlin Dissent) – 3 rationales for freedom of expression;
o Promotion of free flow of ideas, essential to political democracy and the functioning of democratic institutions
§ Political process rational
§ Leads to promoting democracy
o Essential precondition for the search for truth; market place for ideas, contributes to richness of society
§ Promotes market place for ideas
§ Ideas battle each other and eventually lead to the truth – no guarantee that truth will always prevail
o Helps the realization of a person’s character and potentialities as a human being; human dignity and allows
people to express their deeply held beliefs
§ Freedom of expression as an end in itself – leads to self-fulfillment
§ Intrinsic value of speech in and of itself for self-realization of the speaker AND the listener
- In the USA there is no “freedom of expression” they just have Freedom of Speech, which is fiercely protected

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 SECTION 2(b):
Everyone has the following fundamental freedoms; (b) freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication
Freedom of Expression:
- Protects the CONTENT and the FORM of expression
- Expression is defined as anything that conveys meaning (Irwin Toy)à this is an extremely broad right with very little
limitation, as such s.2(b) cases are usually decided under s.1 analysis
- Unlike s.2(a) and s.7, corporations do have private interest standing to bring a s.2(b) Charter argument
- ANYTHING that conveys meaning is protected by s.2(b) unless it is taken out of protection by FORM (i.e. violence, or
threat of violence – Irwin Toy) or LOCATION (only public places protected – Montreal City)
Three Core Values protected by section 2(b): (Keegstra)
(1) Truth
(2) Political and social participation
(3) Self-fulfilment
- These values are why we protect freedom of expression in Canada – cases will have different outcomes based on how
close the expression comes to these values
o The further away the expression in question is from the core values, the more easily justified the infringement
becomes, BUT do still need to justify it, not automatically able to infringe (RJR-MacDonald)
§ i.e. commercial speech, hate speech, obscenities, noise
o Also, further from core value usually means the court is more willing to use deference to the legislature
- Consideration of these values under s.1 justification because court did not want to put limits on scope of s.2(b)

Irwin Toy Ltd. v. Quebec [1989] SCC

FACTS:
- Quebec’s Consumer Protection Act and regulations governed children’s advertising
o Two sections of note s.248 (banned advertising to children >13), s. 249 (defined prohibitions and exemptions)
- Irwin Toy was charged for contravening the CPA, and wanted to argue that the CPA went against freedom of expression
under s.2(b) of the Charter
ISSUE:
- Is the Act a violation of Irwin Toy’s freedom of expression rights under s.2(b)? YES If so, can it be justified under s.1? YES
RULE:
- Section 2(b) protects any activity which attempts to convey meaning that is non-violent (i.e. form and content)
- Corporations have the right to freedom of expression
- Violations can be through the purpose or the effect of the legislation in question
ANALYSIS:
- Step 1: Is the activity protected under the scope of s.2(b)?
o The onus on the claimant to show it falls under s.2(b)
o All expressive content is protected subject to an inherent Limit – only non-violent forms are protected
§ In this case; the advertising clearly conveyed meaning, therefore within the scope of s.2(b)
- Step 2: Does the Government action in purpose or effect restrict the Freedom?
o Burden on proof is on the claimant to demonstrate how freedom of expression is being breached
o PURPOSE: If purpose is to restrict content by singling out particular meanings not to be conveyed, it necessarily
limits the guarantee of free expression
o EFFECTS: In determining if the effect of the action limited the freedom of expression, the onus is on the claimant
to prove this and in demonstrating this they must state their claim with reference to the principles and values
underlying the freedom
§ In this case; the purpose of legislation is to restrict the content of expression by singling out particular
meanings that are not to be conveyed violation
- Step 3: Can the limit be justified under s.1? (Oakes Test)
o Was found to be a limit prescribed by law as the violation steamed from legislation, which was NOT TOO VAGUE
o In this case; the purpose of the legislation was to protect a vulnerable group (children), which was found to be a
pressing a substantial objective
§ There was some question about the evidence as to the age group of children that needed to be protected

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 o The Rational Connection step was also satisfied
o Minimal impairment caused some issues, but ultimately was satisfied
§ Again, this came back to the competing evidence of age ranges – because the older children may not actual
need protection, therefore this total ban went too far
§ Court said that it was within reason of the legislature that the only effective response was a total ban
§ We are not going to tell parliament that they have to do the LEAST INTRUSIVE thing, but just the least
intrusive while still achieving objective (i.e. just has to be reasonable)
§ ** WHEN CONSIDERING VULNERABLE POPULATIONS; Court said that parliament just needed to have reason
to believe that their means were minimally impairing, not that they are the absolute least impairing available
• There will be more deference in these cases as well
o Proportionality was satisfied as the effects of ban < government’s objective
§ Deleterious effects = negative effects of the ban on the toy industry (freedom of expression)
§ Salutary effects = protecting children
§ There are many ways that they can still advertise - just need to be creative
CONCLUSION:
- Therefore, was a violation on Freedom of Expression as per s.2(b), but was a justified infringement

Section 2(b) TEST: (Irwin Toy)

(1) Scope – Does the expression in question (THE FORM) fall within the scope of protection under s.2(b)?
o All content that is expressive, anything that conveys meaning (i.e. the form)
o With the exception of violence, and threats of violence (Khawaja)
o Consider location of expression (Montreal City)
(2) Whether there is an infringement to this right, in either purpose of effect?
o Purpose = the purpose of legislation (or government action) explicitly restricts certain types of content
o Effect = where legislation (or government action) is not expressly limiting expression, but has the outcome of
limiting expression

Commercial Speech:
RJR Macdonald Inc. v. Quebec [1989] SCC
- The legislation at issue is the Tobacco Product Control Act
o Prohibited advertising and promotion of tobacco products and required mandatory un-attributed health warnings
- This case was challenged under s.2(b); also challenged under division of power grounds
- There was a violation under s.2(b), and that the breach was NOT justified under s.1
o There was no dispute that there was a violation of s.2(b), the difference from majority/dissent is the s.1 analysis
o It is very rare that there is not a violation on the s.2(b) rights found
- Irwin Toy said commercial speech was easier to infringe upon because it was further from the core values à majority
said this is true, but do not get carried away with this
o We cannot justify all infringements on commercial speech, still need s.1 analysis
o Need to consider on a contextual basis
o Also do not get carried away with deference in these cases either
- Went through s.1 analysis
o Is a limit prescribed by law because the breach was due to legislation
o There was a pressing and substantial objective – i.e. trying to reduce smoking
o Rational connection caused problems – usually need to show something concrete
§ For psychology/changing human behavior objective, there is not really something concrete to bring
§ SCC said they can use their own logic to ascertain if there is a connection absent concrete evidence;
HOWEVER, in this case there was no common-sense connection between a total ban and the objectives
o Minimal impairments – the total ban was not within the range of reasonable impairment
§ Confirmed that it does not need to be the least impairing, but within the range of reasonable
§ Talked about this being a completely legal activity, and the total ban got in the way of learning about this
legal activity and could have negative health consequences because of it (due to lack of info)
§ There was evidence that a complete ban on advertising would not achieve the objective of reducing
smoking, so hard to show that this is minimally impairing if the means don’t even achieve the ends
o Deleterious / salutary effects (not talked about much because this was before the test was created in Dagenais)

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Hate Speech:
R v. Keegstra [1990] SCC
FACTS:
- Keegstra was a high school teacher; As a result of comments made to his students about Jews and the Holocaust, he
was charged under s.319(2) CC with promoting hatred against an identifiable group
- An appeal to SCC on whether s.319(2) infringed on freedom of expression under s.2(b) Charter
ISSUE:
- Does s.319(2) CC violate s.2(b) of the Charter (freedom of expression)? YES
- If so, can it be justified under s.1? YES
RULE:
- Hate speech is protected under s.2(b) as it conveys meaning, however criminalization will be a justifiable infringement
to prevent harm to the individuals targeted and overall social harms of such speech
- Hate speech is OUTSIDE the core values protected by s.2(b) so infringement is more easily justified
ANALYSIS:
- Court went through a history of hate propaganda in Canada – did so to explain where s.2(b) fits in Canada, and helped
develop reasoning for s.1 analysis
- Question: is there a s.2(b) violation? YES, one of the first cases to cover this topic
o Scope à yes, conveys meaning therefore expression
o Infringement à yes, limiting purpose (i.e. stop people from expressing hate)
o IGNORE what this case says about threats of violence (use Khawaja)
- Can this infringement be justified under s.1?
o Talked about not wanting a rigid s.1 test for s.2(b), need a flexible approach based on context
§ A blanket protection could include things that may undermine the core values of freedom of expression
§ i.e. hate vs. core values: (1) hate speech is often NOT TRUE, (2) undermines ability to be involved in politics if
you are targeted, (3) interferes with self-fulfillment of targeted people
o This is different from USA because their freedom of speech came from a violent revolution, therefore is VERY rigid
in protecting ALL speech regardless of content
o In Canada we are not doing this because there is harm that stems from it; harm to the (1) targeted group, and (2)
society at large by being influenced by the messages
§ So not need to show evidence of damage, it is presumed to be damaging
- Section 1 Analysis:
o Prescribed by law because it came from legislation
o Pressing and substantial objective – clearly, for reasons talked about above
o Rational connection à there is a clear connection between banning hate speech and controlling negative effects
o Minimal impairment à got a little bit tricky here
§ Keegstra argued that suppressing hate speech is important, but there are other ways to do so without
criminalizing it – Also argued that there is no proof that criminalization actually prevents harm
§ SCC said that the significance of the harm justifies the criminalization, and said that criminal law can be
preventative – Said that this is not overly broad, and is in fact the most minimally impairing means
CONCLUSION:
- The hate speech CC provision was a violation to s.2(b) but it was a justified infringement based on s.1

Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11

FACTS:
- Whatcott had been producing and distributing anti-homosexual flyers
- Saskatchewan Human Rights Code (SHRC) prohibits "publication or display of any representation that exposes or tends
to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any persons or class of persons on the basis
of a prohibited ground" à Sexual orientation was one such prohibited ground
- The Human Rights Tribunal tried Whatcott and prohibited the further production and distribution of the flyers;
Whatcott appealed on s.2(b) grounds
ISSUE:
- Whether the prohibition of distributing these flyers constituted an infringement of s.2(b)? YES
- If so, can it be justified by s.1 analysis? YES (for some of his flyers, not all)

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RULE:
- Hatred: extreme manifestations of the emotion described by the words, 'detestation' and 'vilification’
- When looking at minimal impairment, focus on the effects of the impugned expression, not the communicator’s intent
ANALYSIS:
- Court started with looking at the definition of Hatred (for exam we do not need to define hatred)
- Stated that "hatred" should be interpreted as;
o "Extreme manifestations of the emotion described by the words 'detestation' and 'vilification', a threshold which
would not include merely repugnant or offensive expression"
o Also need to consider the effect of the expression, not its inherent offensiveness
- Freedom of Expression Analysis:
o The expression was protected by s.2(b) of the Charter and proceeded to s.1 Oakes test
- Section 1 Analysis:
o Pressing and substantial objective: YES à Purpose was to reduce the harmful effects and social costs of
discrimination by tackling certain causes of discriminatory activity
o Rational connection: YES à Captured hate speech communicated in public, and applied only to expression based
on existing prohibited grounds of discrimination
o Minimal impairment: YES à Alternative measures, including a "market place of ideas" and expanded role for
criminal law in hate speech would not achieve the legislative objective, or would only achieve it ineffectively
o Proportionality: YES à Benefits of the s.14(1)(b) prohibition on hate speech outweighed the “detrimental effect
of restricting expression which, by its nature, does little to promote the values underlying freedom of expression”
CONCLUSION:
- The SHRC was upheld as the violation of s.2(b) rights was found to be justified

Place of Expression:
Montreal v. 2952-1366 Quebec Inc. [2005] SCC
FACTS:
- Montreal had a bylaw prohibiting noise produced at certain levels or public speakers
- A strip club had large speakers on the street that were commentating the activities in the club as advertising
- Club was charged in violation of the bylaw and the Club brought a freedom of expression infringement claim
ISSUE:
- Whether the bylaw infringed on s.2(b) and if infringement can be justified? YES
RULE:
- Adds a cavate to the s.2(b) rights, now there will be Charter protection unless the form or the LOCATION remove the
expression from protection
- To determine if the space allows for s.2(b) claims look to the HISTORICAL or ACTUAL function of the place
o Only public property is protected by the Charter, unless there is state action on a private property
ANALYSIS:
- In this case the violation of s.2(b) was not through purpose (the bylaw restricted noise, not what was making it), rather
was through effect of the bylaw à making this issue not about the kind of speech, but the location of the speech
- Court started by examining s.2(b) protection in public vs. private places
o SCC held that private property is not afforded s.2(b) protection unless there is a state action on the private
property, Charter protection only afforded to public places
o Tried to argue that all expression on public property was protected; SCC responded by saying that not all public
places are the same though…
- In order to determine if the Charter applies, need to examine the HISTORICAL and ACTUAL function of the place
o If historical or actual function of the place is NOT public then there is no s.2(b) protection
o i.e. private offices in a public building are not a PUBLIC place
- In this case, the street was clearly a public place à therefore the Charter applied and s.2(b) was infringed
- Moved on to the s.1 analysis:
o Found that there was a pressing and substantial objective of noise pollution reduction
o There was a rational connection, minimal impairment, and salutary effects outweighed the deleterious effects
CONCLUSION:
- Therefore, the bylaw did infringe on Charter rights but justified under s.1 analysis

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Chapter 22 – Life, Liberty and Security of the Person
SECTION 7:
Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance
with the principles of fundamental justice
- Principles of Fundamental Justice (PFJ) is an INTERNAL LIMITATION which allows for infringement on the right
- A Government action will not be consistent with PFJ if there is:
o (1) Arbitrariness, (2) Over breadth, (3) Gross disproportionality
- Focus of PFJ is on the INDIVIDUAL not the society – whereas section 1 analysis focuses on SOCIETY
- Section 7 and Section 15 have become tied up together because s.15 test is very complicated and almost impossible to
prove, therefore cases that seem to be best suited as a s.15 claims are being brought as a s.7 violation
LIFE LIBERTY SECURITY OF PERSON
- Serious threats to life by - Freedom from physical restraint, - Has been interpreted as integrity
preventing access to medical care including imprisonment (BC MVA, of physical and psychological self
(PHS) PHS) is protected against government
- Right to not be deprived of life, - Ability to make decisions of actions (Morgentaler, Cater)
and protection from threat of fundamental importance to - Right to access medical treatment
premature death (Carter) oneself (i.e. having children, (Morgentaler, PHS)
- Imposing death penalty /OR/ Wilson in Morgentaler) - Right to take steps to increase
extradition to a jurisdiction that - Choice to end life (Carter) safety of dangerous activities (i.e.
with capital punishment - NARROW SCOPE prostitution, Bedford)
- NARROW SCOPE - BROAD SCOPE

Re BC Motor Vehicle Act [1985] SCC

FACTS:
- s.94(2) of the MVA, imposed a fine and imprisonment if a driver was found to be driving with a suspended license
- Was an absolute liability offence that meant the driver would be guilty if the act was proven, no defenses
- Imprisonment is clearly a deprivation of liberty à this case focused on the meaning of fundamental justice, and the
relationship it has to liberty
ISSUE:
- Whether an absolute prohibition and penalty of imprisonment was a violation of s.7? YES
- If so, was in accordance with the principles of fundamental justice? NO
RULE:
- PFJ = basic tenant of the legal system, includes procedural and substantive fairness
- Morally innocent should not be convicted and subject to imprisonment without a chance to defend themselves
ANALYSIS:
- A purposive approach (based on Big M) determines that the 'PFJ' are not the protected rights, they are the qualifier to
the right of life, liberty and security
o Serves to set the parameters of the interest, must not be interpreted to be too narrow as this would make it
easier to have the rights deprived
- For this reason, the term is not synonymous to the American doctrine of natural justice, would be too narrow
o Sections 8-14 describe specific deprivations to liberty in breach of the 'PFJ' à it would be wrong to interpret them
as having greater content than the concept they originate from
o Thus s.8-14 provides invaluable keys to interpreting the meaning PFJ à are essential elements to 'dignity and
worth of the human person' and the rule of law
- We should not be surprised to see that many of the PFJ are procedural in nature – common law is built on procedure
and remedies à this does not limit them to only procedure though
CONCLUSION:
- Absolute liability offended fundamental justice – derived from the conclusion that the innocent should not be
punished, and absolute liability is not saved by s.1

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B(R) v. Children’s Aid Society of Toronto [1995] SCC
FACTS:
- Children's Aid Society was granted an order from the Ontario Child Welfare Act granting wardship of a child, and then
gave consent for the child to have a blood transfusion contrary to the parent’s faith as Jehovah's Witnesses
- Parents challenged the order on the grounds that it violated s.2(b) and s.7
ISSUE:
- Whether the order violated the parent’s liberty rights under s.7; IF SO, was it in accordance with PFJ? YES
RULE:
- Violation of that LIBERTY can be in accordance with PFJ if there is procedural fairness
- Parents have the liberty to make decisions about their children, but this can be infringed upon
ANALYSIS:
- On one hand, liberty does not mean unconstrained freedom; on the other liberty does not mean mere freedom from
physical restraint à in a democratic society the individual must be left room for AUTONOMY to make decisions that
are of fundamental importance
o Drawing a line is often hard, however in the case of child care, this is a liberty of the parents
o That’s why this case talked about the PARENTS rights, not the CHILD's right
- Common law has long thought that parents are in the best position to make decisions for their children, and statute has
long favored the interest of the child but with minimal intervention
o Parental upbringing is fundamental to our society and people have deeply personal interest in such
o This is not to say that the state cannot intervene to safeguard a child's autonomy or health, but intervention must
be justified
- Parents must exercise their rights in a way that does not offend the children's right to life, liberty and security
o Parents are allowed to make decisions against their children's wishes/rights as long as they do not go beyond the
threshold dictated by public policy
- Need balance parent's and children's rights when considering if state interference confirms with PFJ
- In this case, the state interference did deprive the parents of their parental 'liberty' protected by s.7, but the related
procedure (i.e. determining wardship status) was consistent with PFJ
CONCLUSION:
- Was determined that the process used for the Child Welfare Act did conform to PFJ, therefore was not a violation of s.7

Section 7 TEST: (Morgentaler)

(1) Did a government action violate the right to life OR liberty OR security of the person?
§ Is a threshold question
§ Action must have SUFFICIENT CAUSAL CONNECTION to violation (Bedford)
o Choice (i.e. to use drugs, or be involved in prostitution) does not negate causation (PHS)
§ Scope of each tenant of s.7 is different and specific (Morgentaler)
(2) Was the violation inconsistent with the Principles of Fundamental Justice?
§ PFJ: “a legal principle about which there is significant societal consensus that it is fundamental to the way in which
the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable
standard against which to measure deprivations of life, liberty or security of the person”
§ Will NOT be consistent with PFJ if there is 1 or more… (PHS)
o Arbitrariness à Asks whether there is a direct connection between the purpose of the law and the
impugned effect on the individual
§ Look at (1) OBJECTIVE of law, and (2) RATIONAL CONNECTION of objective to limitation on s.7 right
o Gross Disproportionality àLaws are in violation when the effect of the laws are disproportionate to the
state’s objectives
o Over Breadth à Law that is so broad in scope that it includes some conduct that bears no relation to its
purpose
à Cannot be a positive right, but the door is open to try to argue (Gosselin)
à Burden on the claimant at both steps, only shifts to Crown in s.1 analysis
à If something is not consistent with PFJ – will RARELY be saved by a section 1 analysis, BUT they are different analysis
asking different questions so must do both regardless (s.1 important for consideration of boarder social interests – Carter)

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R v. Morgentaler [1988] SCC
FACTS:
- Criminal Code prohibitions on abortions (person 'causing them', and women getting them) with an exemption…
o (1) if they were performed at an accredited/approved hospital, (2) with approval by therapeutic abortion
committee, (3) after being issued a certificate stating that continuation of pregnancy would likely endanger
health/life, and (4) the abortion had to be done by a qualified doctor who was not on the committee
- Morgentaler and two colleagues established abortion clinics in Toronto, it violated the CC as it was not accredited and
therefore had no committee to issue certificate for the abortions
- Argued that the provision violated s.7 of the Charter
o Had private interest standing to challenge the portion about the doctor's criminalization... BUT
o Needed to be charged in order to have collateral standing in order to challenge the whole legislation
o Now that we have public interest standing, he would have had standing here had it been around then
ISSUE:
- Whether CC abortion prohibition in s.251 of CC was a violation of a person’s security of the person? YES
- If so, was in accordance with the principles of fundamental justice? NO
RULE:
- SECURITY OF THE PERSON includes state-imposed threats to bodily integrity AND psychological stress
o State-imposed delays to medical treatment is a violation of security of the person
- Parliament can impose procedures for the operation of a criminal provision/defense, but cannot do so in a way that
offends PFJ (i.e. creating unreasonable barriers to access defense)
ANALYSIS:
Majority focused on SECURITY OF THE PERSON
- Section 7 Breach?
o Law has long recognized that the human body ought to be protected from interference by others
§ With the advent of the Charter, protection of security of the person is elevated to a constitutional norm
§ This is not to say that the state can never interfere, there may be valid reasons to interfere with security of
the person – however any interreference must be in accordance with the PFJ
o Appellant submits that the security of the person protected by the Charter is an explicit right to control one’s
body and make fundamental decisions about one's life
o Caselaw leads to the conclusion that state interference with (1) bodily integrity and (2) serious state imposed
psychological stress constitute a breach in security of the person
§ On the physical and emotional level, preventing pregnant women from making decisions about her body
unless she meets requirements set by a committee IS a breach of bodily integrity and thus s.7
§ Not allowing access to a safe medical procedure, being subject to a committee's decision, undue delay in
access to procedure could increase risks (physical and emotional health risks)
- Principles of Fundamental Justice:
o Relied heavily on a report from 1977 about the functioning of the abortion provisions, which found that only 20%
of hospitals met the requirements to the CC exemption provision, and provinces could choose to have more
regulation or eliminate the exemption all together
o Further flaws in VAGUENESS in that the definition of 'health' was not given for the committee to be making
determinations on whether to grant a therapeutic abortion à very little standardization in the committees
§ 'Health' is not a medical term in itself – cannot allow committees to exercise professional judgement in
making determination of what it means
o Parliament can impose procedure to ensure the operation of a criminal provision, but cannot do so if it is contrary
to PFJ à this procedure is manifestly unfair with so many barriers to its own operation that it offends PFJ
- Section 1 Analysis:
o The WHOLE of the provision is not in accordance with s.7 and CANNOT be justified under s.1
o Women whom are not meant to face criminal liability will be at risk of being criminally charged, or face the burden
of traveling to get an abortion, potentially forcing it be done later in the term posing more risks
o This is also not proportionate to the objective sought to be achieved through criminalization, and may actually
defeat the objective all together
CONCURRING (Wilson):
- Agreed with the outcome, therefore counted towards the majority à BUT had extremely different reasoning, focused
on LIBERTY and less on PFJ

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- Says that majority missed the foundational issue; Can a pregnant woman be compelled to carry a fetus to term?
o i.e. Does right to liberty give a woman the liberty to make medical decisions about her body? YES
o Legally this is important because this takes this out of the procedure-based arguments, and takes it to the
argument that there is no CC provision that could be consistent with PFJ
§ Meaning there would be a constitutional right to have an abortion
- Talked about human dignity which is relevant because right to make decisions about yourself is foundational to human
dignity – is the underpinning for many Charter rights
- Said this is NOT a medical decision, it is a women’s right decision à reproduction is a fundamental women’s rights
- Security of Person argument should have been framed around deference to committee was a violation of autonomy
CONCLUSION:
- IMPORTANT note: The Majority’s ruling only invalidated the provisions on the basis of PFJ à DID NOT say that
prohibition on abortions is unconstitutional, this leaves door open to Parliament to restrict abortion access again

Canada v. PHS Community Services [2011] SCC

FACTS:
- Insite injection site provides clean needles for drug addicts to stop spread of disease and provide medical supervision to
reduce number of fatal overdoses à had been given exemptions from criminal sanctions since 2003
- In 2008 the exemption was not renewed – without the exemption Insite was subject to criminal sanctions of CDSA
- Brought action against the government as violation of s.7 rights – were seeking a court ordered exemption
ISSUE:
- Whether not providing exemption to Insite was a violation of s.7 of the Charter? YES
- If so, was in accordance with the principles of fundamental justice? NO
RULE:
- A law or action goes against the PFJ if it is: (1) Arbitrary, (2) Grossly Disproportional, (3) Overbroad
- The ability to make some choices doesn’t defeat the idea that there could be a violation of s.7
ANALYSIS:
Insite challenged s.7 in two ways:
- CDSA s.4(1) and s.5(1) à possession and trafficking of narcotics
o Trafficking was removed from the claim because there was an exemption available = NOT inconsistent with PFJ
o Did not want to strike down CDSA because it has legitimate roles in protecting Canadians from drugs
- CDSA s.5.7 à the Ministerial discretion to grant exemption
o Insite workers claimed LIBERTY interests were implicated (could be sent to jail for possession if CDSA applies)
o Clients argued that SECURITY OF PERSON was infringed as this took away the safe place to use drugs
Canada's argument on Choice à were rejected by SCC
- Said that any negative consequence to Insite users is not caused by the prohibition, it is caused by their choice to
consume drugs = no causation of impact to life, liberty, or security of person
o TJ found that addiction is a loss of control over needing to consume – this does not negate that some control is
left though, i.e. the choice to consume safely
- Second argument is that people who choose to break the law should suffer the consequences of doing so
Standing:
- Canada also argued that the Insite exemption was a policy decision and therefore exempt from Charter; SCC responded
by saying that yes, it is policy but must be consistent with the Charter still
Section 7 Analysis:
- This was not an issue of the CDSA sections themselves but was an issue with the decision of the Minister
o Minister's actions are not absolute – actions must conform with the Charter
- Next question is whether the Minister's decision that the CDSA applies to Insite was consistent with PFJ
- In order to determine whether something is consistent with PFJ is to look at
o Arbitrariness à look at (1) objective of law, and (2) the relationship between state interest and impugned law
o Gross Disproportionality à “state actions of legitimate responses to a problem that is so extreme that it has a
negative effect on the population” (Malmo-Levine)
o Over breadth
- Arbitrariness:
o SCC recognized that (1) criminalization has done little to reduce drug use, (2) drug use is less risky if done
supervised, (3) Insite has not contributed to crime rate

25
 o Here, if the goal of CDSA was protecting public safety – Insite exemption was actually furthering those objectives
and the Minister’s action was hindering these objective à therefore, was ARBITRARY
- Gross disproportionality:
o Insite is saving lives and creating no negative impacts to the community; therefore, the effect of denying
exemption is grossly disproportionate to any benefit Canada might gain from uniform stance on drug possession
- Having found that the Minister's decision was arbitrary and grossly disproportionate, there is no need to consider
overbreadth à MINISTER’S ACTIONS WERE INCONSISTENT WITH PFJ
Section 1 Analysis:
- Don’t need to analyze, but it would fail on rational connection here – doesn’t promote health and safety
CONCLUSION:
- The sections of the CDSA were not violations, but the Minister’s action in regard to his discretionary power was
- Court ordered Minister to grant an exemption to Insite à this is a s.24 remedy (declaration)

Canada v. Bedford [2013] SCC

FACTS:
- Prostitution is not illegal in Canada but almost all of the activities surrounding prostitution are illegal
- Three relevant CC provisions;
o s.210 à criminalizing use of a bawdy-house (so prostitutes could not work in them, but could do ‘out-calls’)
o s.212(1)(j) à living off the avails of prostitution – i.e. anything that is reliant on prostitute’s income
§ Was meant to be targeting pimps BUT… Had the effect of preventing prostitutes from hiring security guards,
receptionists, drivers (children of prostitutes could also fall under this)
o s.213(1)(c) à communicating about prostitution in a public place
§ Targeting johns (protect public from there being streets of people advertising prostitution)
§ This was also challenged on freedom of expression s.2(b)
ISSUE:
- Are these three CC provisions a violation of s.7 and therefore invalid? YES Can they be upheld by PFJ or s.1? NO
RULE:
- Expansion on definitions of Principles of Fundamental Justice
o If complainant can find a problem with just ONE of these, that’s enough to find a violation of PFJ
- PFJ is focused on the INDIVIDUAL rather than society à section 1 focuses on SOCIETY rather than individual
ANALYSIS:
- Biggest concern was about SAFETY of prostitutes
- These provisions brought up claims under SECURITY OF THE PERSON – forcing them to make a choice to obey law and
risk being in danger by making out-calls
Standing:
- Not public interest standing because prostitutes would have to be admitting to a crime
- Public interest standing was barred by requirement of being the ONLY way to bring matter to court (before DESW)
- This is case ended up be brought by former sex workers and a few current sex workers under private interest
Violation:
- Court requires a sufficient causal connection between the action and the violation
o Look to the laws purpose and the overall deprivation
o Crown argued that the individuals choose this lifestyle and it’s not the law that causes their danger or their
violation of s.7 à choice does not negate causation (PHS)
o There was a causal connection that is sufficient between the law and the effect on s.7 rights of prostitutes
Section 7 Analysis:
- Burden of proof on applicant à this was clarified in Bedford
- Is it unjust in relation to that person? If even ONE person is affected adversely, then that’s enough
o Focus of PFJ is on the INDIVIDUAL not the society
- SCC took opportunity to develop definition of principles of fundamental justice:
o If complainant can find a problem with just ONE of these, that’s enough to find a violation of the principles of
fundamental justice
(1) Arbitrariness: where there is no connection between the effect and the purpose of the law (Morgentaler)
§ Is there direct connection between the effect of the law and the INDIVIDUAL (not society)
§ There has to be a rational connection between the object and the measure that they are using

26
 (2) Over Breadth: a law that is so broad in scope that it includes some conduct that is unrelated to the purpose
§ There is a connection, but it goes too far and covers things that shouldn’t be included
§ Is law so broad in scope that it includes some conduct that is unrelated to purpose of law?
(3) Gross Disproportionality: asks whether the law’s effect on life liberty and security of person are so grossly
disproportionate to the purpose that they cannot be supported
Section 1 Analysis:
- There was a problem with minimal impairment in this case
- Remember that s.1 focuses on SOCIETY not the individual
CONCLUSION:
- “It’s not that parliament can't put limits on prostitution, but these limits were too arbitrary, too broad, and violated
security of the person” à i.e. they just can’t do it in a way that violates charter
- No CC sections (bawdy house, living off the avails, communication) were upheld or could be saved by s.1
- Remedy was a declaration of invalidity and a 1-year suspension for Parliament to correct the legislation

Carter v. Canada [2015] SCC

FACTS:
- Taylor was diagnosed with fatal ALS – She brought claim before BCSC challenging constitutionality of the CC provisions
prohibiting assistance in dying
- Joined in her claim by Lee Carter and Hollis Johnson, who had helped their mother with assisted death in Switzerland
ISSUE:
- Whether criminal prohibition in s.241(b) not to assist another person in ending their own life violates Charter right to
s.7 and to equal treatment under the law (s.15) and can’t be saved under s.1? YES
RULE:
- Even though the court doesn’t say s.7 covers “death with dignity”à SCC says the law affects people by forcing them to
end their lives early
- In some circumstances, the court will need to go through a s.1 analysis even after s.7 if there are broader social issues
ANALYSIS:
- Two claims were advanced 2 claims:
o Section 7: That the prohibition on physician-assisted dying deprives competent adults, who suffer a grievous and
irremediable medical condition that causes the person to endure physical or psychological suffering that is
intolerable to that person, of their right to life, liberty and security of the person
o Section 15: That the prohibition deprives adults who are physically disabled of their right to equal treatment à
discriminates on the basis of disability
- BCCA said they were bound by the decision in Rodriguez (which stated the bar on assisted death was constitutional)
- Trial courts may reconsider settled rulings of higher courts in two situations: (1) Where a new legal issue is raised, and
(2) Where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate
o (1) This case was brought on different fundamental principles than Rodriguez
o (2) The political climate about medially assisted dying had changed, many countries had now started allowing it
Section 7 Infringement:
- Life: TJ found that prohibition on physician assisted dying had the effect of forcing some individuals to take their own
lives prematurely, for fear that they would be incapable of doing so at a later date
o If a government action or law results in death, then you've violated right to life – this law has effect of people
killing themselves prematurely because they cannot choose to become more sick and then have assisted-suicide
o The law has come to recognize that in certain circumstances, an individual’s choice about the end of her life is
entitled to respect
- Liberty & Security of the person: Liberty protects the right to make fundamental personal choices free from state
interference (Blencoe v. British Columbia)
o An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and
autonomy – Security of the Person encompasses notion of personal autonomy
o The prohibition interferes with their bodily integrity and medical care and thus trenches on Liberty
o Liberty & Security of the Person are engaged by state interference with a persons physical or psychological
suffering – therefore, by leaving people to endure intolerable suffering, it infringes on security of the person

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Principles of Fundamental Justice:
- Object of the current law = to protect vulnerable persons to be induced to commit suicide in time of weakness and to
promote life (promotion of life too broad though)
- Arbitrariness: Principle of fundamental justice that forbids arbitrariness targets the situation where there is no rational
connection between the object of the law and the limit it imposes on life, liberty or security of the person
o Object of the prohibition on physician assisted dying is to protect the vulnerable from ending their life in times
of weakness (it is not arbitrary)
o A total ban helps achieve this objective; therefore, individuals’ rights are not limited arbitrarily
o TEST: whether there is rational connection between object of the law and the limit it imposes on the right to
life, liberty, and security of the person
- Overbreadth: Asks whether a law that takes away rights in a way that generally supports the object of the law, goes too
far by denying the rights of some individuals in a way that bears no relation to the object
o The prohibition is too broad here – the law catches people outside the object of the act (i.e. more than just
vulnerable persons)
- Gross disproportionality: didn’t address because didn’t need to
Section 1 Justification:
- This is difficult to justify with s.7 claims that fail the above, but it is possible where public good justifies the deprivation
– or where societal balance required – needs level of deference
o Will defer where there is a complex regulatory regime
- To justify infringement under s.7, Canada must show that the law has a pressing and substantial objective and that the
means chosen are proportional to that object
o Appellant concedes that the law has a pressing and substantial objective
o There is a rational connection
o In regard to minimal impairment, TJ concluded that a permissive regime with properly designed and administered
safeguards was capable of protecting vulnerable people from abuse and error
§ Is the absolute prohibition on assisted dying the least drastic means of protecting vulnerable persons? NO -
you could implement a regulatory regime to input safeguards
o Deleterious effects and salutary benefits – not necessary to go to this step, since not minimally impairing
CONCLUSION:
- Medically assisting dying CC probation violates s. 7 and it is not saved by s. 1
- Remedy = Declaration of invalidity and that it should be suspended for 12 months
o Constitutional exemption could have been applied on case by case basis à but decided this was not the best
option because individual exemptions would take too long

Gosselin v. Quebec [2002] SCC

FACTS:
- Under Quebec’s social assistance scheme found in the Social Aid Act, between 1984 and 1989, the base amount of
money payable to claimants under 30 was 1/3 of that payable to those 30 and over
- The aged based distinction was removed in 1989
- Gosselin brought a class action on behalf of all those who had been under 30 and affected by the old scheme
ISSUE:
- Is this a s.7 violation? i.e. can s.7 be used to enforce positive rights forcing government action? NO
RULE:
- Nothing in s.7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the
person à s.7 has been interpreted as restricting the state’s ability to deprive people of these rights
ANALYSIS:
- Appellant argues that the right to security of the person includes the right to receive a particular level of social
assistance from the state adequate to meet basic needs
- Three elements to this claim… by providing inadequate welfare benefits:
o That the legislation affects an interest protected by the right to life, liberty and security of the person within the
meaning of s.7
o That providing inadequate benefits constitutes a “deprivation” by the state
o That, if deprivation of a right protected by s.7 is established, this was not in accordance with the principles of
fundamental justice

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- Nothing in s.7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the
person à s. 7 has been interpreted as restricting the state’s ability to deprive people of these rights
o It is possible to have a new reading of section 7 (living tree) – therefore positive rights would be a new reading
o “The frail platform provided by the facts of this case cannot support the weight of a positive state obligation of
citizen support”
o There is not sufficient evidence in this case to support the proposed interpretation of s.7 that instills positive
obligations on government [not enough evidence in this case to show a positive obligation, but might be other
cases where there is enough evidence]
- Section 7 can be violated in a negative way, but nothing so far that says the government must provide anything (ex.
must provide food, must provide housing, etc.) but left this possibility open for future cases
CONCLUSION:
- There was no s.7 violation found, as there was not enough evidence to support the imposition of a positive right based
on the facts of this case

Chapter 23 – Equality Rights

SECTION 15:
Equality Before and Under the Law, and Equal Benefit of Law:
(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.
Affirmative Programs:
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.

- Section 15 came into effect 3 years later than the rest of the Charter in order to give time for government to update laws
to make sure they followed the equality rights
- The focus on substantive equality not formal equality à Substantive Equality is based on equal outcomes (realizing
unequal treatment may be required for this); whereas Formal Equality is based on equal treatment only
- Section 7 and Section 15 have become tied up together because s.15 test is very complicated and almost impossible to
prove, therefore cases that seem to be best suited as a s.15 claims are being brought as a s.7 violation

- The enumerated grounds listed in the provisions are automatic violations, BUT this is not an exhaustive list; can also
argue for something to be an analogous ground worthy of equality protections
- To be ANALOGOUS must be immutable characteristics (i.e. beyond control of the individual / not easily changed) and will
need to argue there is an aspect of historical discrimination / disadvantage based on this characteristic as well
o Allowed Analogous Grounds:
(1) Citizenship (Andrews)
(2) Sexual Orientations (Egan)
(3) Marital Status (Miron/Quebec v. A)
(4) Aboriginal Status + Residency on Reserve (Cobiere)
- Once something is recognized as analogous it is considered analogous forever, and vice versa if something is not found to
be an analogous ground (unless it can be distinguished and re-argued)
o NOT recognized as analogous grounds:
§ (1) Employment status, (2) Occupation (in terms of an agricultural work), (3) Province or Municipality of
residence, (4) Marijuana users i.e. lifestyle choices (Malmo Lavine), (5) Language, Manner of conception,
(6) Poverty (but this could be challenged, as there is historical discrimination)

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Andrews v. Law Society of BC [1989] SCC
FACTS:
- Andrews had permanent residency status in Canada (NOT a citizen though), brought action for a declaration that the
Canadian citizenship requirement for admission to the Law Society of BC violated s.15 of the Charter (Andrews was
otherwise qualitied to practice law in the province)
ISSUE:
- Does the citizenship requirement in s.42 of the BC Barristers and Solicitors Act contravene s.15(1) of the Charter? YES
RULE:
- Discrimination should be focused on the EFFECTS of government action not just on the INTENTS or PURPOSES of those
actions (favors substantive equality and rejects formal equality)
- Two-step TEST:
(1) Is there a presence of a distinction based on protective grounds? (enumerated and analogous grounds)
(2) Does that distinction result in a burden or the deprivation of a benefit to the claimant i.e. discriminatory?
ANALYSIS:
- Clear that the purpose of s.15 is to ensure equality in the formulation and application of the law
- Discrimination is unacceptable in democratic society because epitomizes worst effects of the denial of equality
o Discrimination = a distinction, whether intentional or not, based on grounds relating to personal characteristics of
the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual
or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages
available to other members of society
- The "enumerated and analogous grounds" approach most closely accords with the purpose of s.15 and the definition of
discrimination outlined above and leaves questions of justification to s.1
- To assess whether a complainant’s rights have been infringed under s.15(1)
(1) Complaint must show they are receiving equal treatment before and under the law or that the law has a
differential impact on him or her in the protection or benefit accorded by law
(2) Also, must show that the legislative impact of the law is discriminatory
- Where discrimination is found, a breach of s.15(1) has occurred and, any justification would take place under section 1
Application:
- Section 15 applies to all persons whether citizens or not – Provision states ‘every individual’
- Permanent resident (PR) must wait 3-years from date of establishing PR before applying for citizenship à distinction
therefore imposes burden in form of delay in employment opportunity
- A rule that bars an entire class of persons from certain forms of employment, solely on the grounds of lack of
citizenship status attributes infringes on s.15
- Was claiming unequal treatment based on residency status; BUT citizenship is not an enumerated ground, therefore
citizenship is an analogous ground à it is immutable or beyond the control of the individual
CONCLUSION:
- Therefore, citizenship requirement did VIOLATE s.15 Equality Rights

Law v. Canada [1999] SCC

- After Andrews, the court thought that the s.15 test was good, but in practice it did not always work well
- So, the SCC reformulated the test in the Law case… WE DO NOT NEED TO KNOW TEST
o Introduced idea of human dignity into the s.15 test à claimant needs to show an infringement on human dignity
o Also added list of contextual factors
- This made it almost IMPOSSIBLE to bring a s.15(1) case – added difficulties with interpretation and application of test

R v. Kapp [2008] SCC

FACTS:
- Appellants were commercial fishers, who assert their rights under s.15 were violated by a communal fishing license
granted to members of three Aboriginal bands giving them exclusive right to fish for salmon 24 hours, effectively
banning the commercial practices during this time
- Case came before the court as the appellants deliberated fished during the time granted to the Aboriginal bands
ISSUE:
- Whether this fishing license violates s.15 Equality Rights of non-Aboriginal Fishers? NO

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 RULE:
- Re-Formulation of s.15 test à based on violation of equality and the addition of justification via ameliorative program
ANALYSIS:
- After Law, SCC realized the s.15(1) test needed to be reformulated and went back to a modified Andrews test, with the
additional step created for s.15(2) ameliorative programs
o s.15(1) focus is on preventing governments from making distinctions based on the enumerated/analogous grounds
o s.15(2): focus is on enabling governments to pro-actively combat existing discrimination through affirmative action
- Once the s.15 claimant has shown a distinction made on an enumerated or analogous ground, it is open to the
government to show that the impugned law, program or activity is ameliorative and constitutional
- Application:
o The licensing program was part of an attempt to negotiate a solution to aboriginal fishing rights claims
o The communal fishing license, by addressing long term goals of self-sufficiency and by providing additional sources
of income/employment relates to the social and economic disadvantage suffered by the bands
CONCLUSION:
- Was a distinction made based on an enumerated ground, however this was an ameliorative program = no violation

Section 15 TEST: (Andrews / Kapp)

(1) Section 15(1): Is there a distinction created based on enumerated or analogous grounds (Cobiere)?
o Burden on claimant
o Distinction means there is some inherent comparison – but does not need to be a perfect comparison (i.e. does
not need to be a 'mirror comparative' group; Withler got rid of this)
o Distinction can be through the PURPOSE or as an ADVERSE EFFECT (Eldridge)
(2) Section 15(2): Is it part of an ameliorative program? (Kapp)
o Burden on government
§ Focus ONLY on object (purpose) of the program (not the effects)
§ Must be a rational connection between goal and program
o A program DOES NOT violate the s.15 if government can demonstrate that
(1) The program has an ameliorative or remedial purpose (doesn’t have to be only purpose)
(2) The program targets a disadvantaged group identified by the enumerated or analogous grounds
o This is a VERY STRONG argument for the Crown, even if there is open discrimination as a result of the program,
the fact that the program passes test for the intended group means there is NO s.15 violation (Cunningham)
(3) Section 15(1): Does the distinction create a disadvantage that perpetuates prejudice or stereotyping?
o Burden on claimant
o Four factors from Law relevant here à Could talk about effect on human dignity
o Disadvantage / Discrimination = "arbitrary disadvantage" (Quebec v. A / Taypotot)
§ Includes but not limited to prejudice and stereotyping
** Section 1 could save a violation but is rare because discrimination is generally very hard to justify (still do s.1 analysis though)

Quebec v. A [2013] SCC

FACTS:
- Quebec civil code provisions relating to benefits to married spouses – did not extend these benefits to non-married
couples (common law or de facto spouses), ‘A’ challenged this for being under inclusive
- The couple had been together for many years in de facto relationship, they had children and property together à the
couple split up and the dispute came up in regard to the property division
ISSUE:
- Whether Quebec’s Civil Code excluding de facto spouses violated the right to equality under s.15 of the Charter? YES
- If so, whether the provisions could be upheld under s.1? YES
RULE: ** The rule in this case come from the DISSENT à was made by Abella and adopted in subsequent cases
- Definition of discrimination being ‘prejudice or stereotyping’ is too narrow à changed terminology ARBITRARY
DISADVANTAGE – and said ‘prejudice’, ‘stereotyping’, and ‘human dignity’ are a part of this

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ANALYSIS:
- STEP 1: identify the distinction and whether it is based on an enumerated/analogous ground
o Exclusion of de facto spouses from the economic protections for formal spousal unions is a distinction based on
marital status, an analogous ground (marital status = analogous ground, Miron)
- STEP 2: s.15(2): Not analyzed in this case, because there was no program
- STEP 3: Does the distinction create arbitrary or discriminatory disadvantage?
o Moves forward test in Kapp – doesn’t only need to be prejudice or stereotyping
o Prejudice and stereotyping are to indicators of discrimination but not the only indicators of discrimination à we
want a flexible template to find discrimination
- Section 1 Analysis:
o Pressing and substantial objective? Not argued either way, so she assumes it is
o At rational connection stage à excluding de facto spouses form the support and division of property protections
is wholly unconnected to the goal of allowing couples the freedom to be outside the legal regimes governing
marriage and civil union
o In regard to minimal impairment, an outright exclusion of de facto spouses cannot be said to be minimally
impairing of the equality rights
o For proportionality, there needs to be deference given to the government to allow legislatures a margin of
appreciation on difficult social issues (marriage is complicated issue) – deference given because was a complex
policy issue
CONCLUSION:
- There was a violation of equality rights, however it was upheld based on proportionality step of s.1 test

Kahkewistahaw First Nation v. Taypotat [2015] SCC

- Case is legally important because Abella J. had the majority here and reiterated the test from Quebec v. A
- In this case the claimant was claiming inequality based on age and education level
- Was not successful in SCC because they said they did not present enough evidence in the lower courts
- Also clarified that you only do a s.15(2) analysis if there is an ameliorative program – otherwise test is only two steps

Eldridge v. BC [1997] SCC

FACTS:
- Three individuals who were born deaf and whose preferred means of communication was sign language sought a
declaration that the failure to provide public funding for sign language interpreters for the deaf when they received
medical services violated s.15 of the Charter
- On its face the Medical Services Act is NOT discriminatory à it is discriminatory in effect
ISSUE:
- Whether the failure to provide sign language interpreter infringes equality rights under s.15(1) of the Charter? YES
RULE:
- When a “facially neutral” law has a differential impact on the basis of a prohibited ground of discrimination, the result
is referred to as “ADVERSE EFFECTS” discrimination
ANALYSIS:
- There was found to be a violation because there was a distinction based on enumerated grounds (i.e. disability)
o SCC talked about historical discrimination/disadvantage of people with disabilities
- Failure to provide interpreters was a barrier to accessing medical services, and thus an adverse effect, because on the
face of it the medical benefits part of the legislation was fine, it was in effect that there was a problem
- Crown tried to say this was an ancillary service à the SCC said that this should not be considered an ancillary service –
It is the means by which deaf persons may receive the same quality of medical care as the hearing population
- There was an attempt to make this about a 'positive right' and the court turned this around and said the right to equal
access to medical services was being withheld rather than there being a right to getting this service as a benefit
o Once a state provides a benefit, it has to do it in a non-discriminatory manner – and sometimes this will require
them to take positive action
CONCLUSION:
- Therefore, there was a violation of s.15(1); which failed the s.1 analysis on minimal impairment
- Remedy under s.24 was that they gave government 6 months to provide service

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Coebiere v. Canada [1999] SCC
FACTS:
- Case concerned s.77(1) of the Indian Act, which requires band members to be “ordinarily resident” on their reserve in
order to be eligible to vote in band elections
- Non-resident band members brought a challenge under s.15 alleging that residence was an irrelevant personal
characteristic on which to deprive them of a voice in decisions that could deeply affect them
ISSUE:
- Whether the exclusion of off-reserve members of an Indian band from the right to vote in band elections pursuant to
s.77(1) of the Indian Act is inconsistent with s.15(1)? YES
RULE:
- When something is found to be analogous ground it is considered to be so in ALL contexts à think of this as a legal
fiction that it is added into section 15(1)
o However, if NOT analogous à it will never be analogous, unless there is some way to distinguish
- Immutability is the main argument you have to make to show its covered under s.15
- ALSO, must show that there is historical disadvantage or discrimination also based on this ground
ANALYSIS:
** Is an older case and the test was still from the LAW version of test à case was decided based on analogous grounds
- What are the criteria by which we identify a ground of distinction as analogous?
o We look for grounds of distinction that are analogous or like the grounds enumerated in s.15 – race, national or
ethnic origin, color, religion, sex age or mental or physical disability (similar characteristics to these)
o What these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made
not on the basis of merit but on the basis of personal characteristics that is immutable or changeable only at
unacceptable cost to personal identity
o Another fact is whether the ground is included in federal and provincial human rights codes
- Application:
o Concluded that the legislation imposed differential treatment, then turned to the issue of analogous ground
o The distinction goes to a personal characteristic essential to a band member’s personal identity - this is no less
immutable than religion or citizenship
o Band members living off reserve have generally experienced disadvantage, stereotyping, and prejudice and form
part of a discrete and insular minority defined by race and place of residence
CONCLUSION:
- Remedy: The words “and is ordinarily resident” were struck from the statute, but order was delayed for a period of 18
months to allow parties to create an electoral structure that would conform to the requirements of the Charter

R v. Kapp [2008] SCC

- REMEMBER: This case removed Law test – made a new s.15 test, and added s.15(2)
- Section 15(2) ONLY look at purpose only – NOT adverse effects
- If a program is found to be ameliorative then there is NOT a s.15 breach
o What if there is a colourability? This would allow the government to get out of all discrimination cases
- Two steps for s.15(2) to avoid this:
(1) Program must have ameliorative or remedial purpose (must be trying to fix something)
o The effect does not have to be ameliorative, can have some unequal adverse effects, as long as the
government is trying to fix a problem
o Government is free to experiment – as long as they are acting in good faith
o Does this need to be the sole purpose of legislation? NO
o CANNOT punish a group through an ameliorative program, and CANNOT be colorable
(2) Program must be benefitting a group of the enumerated or analogous grounds
- Application: the program was ameliorative
o The program was benefitting a historically disadvantaged group (aboriginal peoples)
o Purpose was to address the disadvantage in regard to fishing
o Therefore, NO discrimination can be found in regard to anyone else through adverse effects

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Alberta v. Cunningham [2011] SCC
- The claimants assert that the Metis Settlements Act’s (MSA) exclusion of Metis who are also status Indians from
membership in one of the Metis Settlement violates the guarantee of equality of s.15 of the Charter
- Underlying rationale of s.15(2) is that governments should be permitted to target subsets of disadvantaged people on
the basis of personal characteristics while excluding others
o Its ok if we benefit a certain group over other groups if its meant to ameliorate disadvantage
- Crown argued that the purpose of the MSA is to enhance Metis identity, culture and self-governance
o Exclusion of status Indians from membership in new Metis land base serves and advances this object
o The MSA is an ameliorative program protected by s.15(2) of the à claim is therefore dismissed
- This is a VERY STRONG argument for the Crown to make, even if there is open discrimination, as long as there is an
ameliorative program then there is NO s.15 violation

ABORIGINAL PEOPLES
Chapter 14 – Aboriginal Peoples and the Constitution
SECTION 35:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

What does this mean?

o Existing à section 35(1) applies to those rights which were in existence when the Constitution Act 1982 came into
effect – this means that extinguished rights are not revived by the Constitution Act (Sparrow)
§ Existing = not extinguished as of 1982
o Recognized and Affirmed à there is a restraint on Parliament’s power, but not a total bar – Parliament can infringe on
Aboriginal rights if they can justify the infringement (Sparrow)
o Scope of Rights à Must be a (1) practice, custom, or traditions which is (2) integral to the distinctive aboriginal culture,
with (3) a chain of continuity since pre-contact times (Van der Peet)
General Ideas:
o Aboriginal rights are to be given a LARGE AND LIBERAL INTERPRETATION
§ Ambiguities are meant to be resolved in favor of aboriginal peoples
o Crown had fiduciary duty towards aboriginal people (is a legal relationship) à must uphold the “honor of the Crown”
o Standing à private interest (ish) – aboriginal rights are collective rights, so not just asserting rights on one's own
behalf, asserting rights on whole communities’ behalf
Other Sections of Charter DO NOT APPLY à i.e. section 1 and section 33 are not applicable, AND no section 24 remedies
o This is meant to increase protection by giving them an addition constitutional protection
o Aboriginal peoples can bring Charter arguments separate from their aboriginal rights though

R v. Sparrow [1990] SCC

FACTS:
- Appellant, member of Musqueam Indian Band, charged under s.61(1) of Fisheries Act of the offence of fishing with a
drift net longer than permitted by terms of the Band’s Indian food fishing license
- Appellant has defended the charge on the basis that he was exercising an existing aboriginal right to fish and that the
length restriction in the Band’s license is inconsistent with s.35(1) of the Constitution Act and therefore invalid
ISSUE:
- Is the net length restriction inconsistent with s.35(1) of the Constitution Act, 1982? Sent back to trial
RULE:
- Formulation of the Sparrow test for Aboriginal Rights Infringement

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ANALYSIS:
What is the meaning of “existing”?
- In section 35(1) applies to those rights which were in existence when the Constitution Act 1982 came into effect – this
means that extinguished rights are not revived by the Constitution Act
- Extinguishment has to be EXPLICIT and can only be done by the FEDERAL government
o Crown must demonstrate a CLEAR AND PLAIN INTENT to extinguish rights
- The phrase “existing aboriginal rights” must be interpreted flexibly so as to permit their evolution over time à RIGHTS
ARE NOT FROZEN IN TIME
o Don’t need to use same method they did prior – rights can evolve with modernization
- Questions are always: (1) Were they existing prior to 1982? and (2) Were they extinguished prior to 1982?
- Any ambiguities have to be construed in favor of aboriginals
What is the scope of rights?
- A right must be a part of the DISTINTICTIVE CULTURE of the aboriginal people
- Have to keep in mind the sui generis nature (unique) of aboriginal rights
What is the meaning of "recognized and affirmed"?
- Court interpreted this as a restraint on Parliament’s power, but not so much that there cannot be infringement
o The words "recognized and affirmed" in s.35(1) mean that the government has to justify infringement on rights
- This is also the recognition of the fiduciary relationship between Crown and aboriginals à honor of the Crown
Application:
- Was the right existing à Sparrow claimed his people had been fishing in this area since the "time in memorial"
- Was the right extinguished à Crown argues that the regulations under the Fisheries Act had extinguished the right
o Court said the effect of the Fisheries Act did not extinguish the rights - the fact that you regulate an activity is not
enough to extinguish a right
- What was the scope à Court recognized “that salmon fishery has always been an integral part of distinctive culture”
CONCLUSION:
- Case was sent back to trial to apply the newly formulated test to the facts

R v. Van der Peet [1996] SCC

FACTS:
- Appellant was charged under s.61(1) of the Fisheries Act with the offence of selling fish caught under the authority of
an Indian food fish licence, contrary to s 27(5) of the BC Fishery (General) Regulations
- This says no First Nation should barter under an Indian food licence à Charges arose from sale of 10 salmon
- The appellant has based her defence on the position that the restrictions imposed by s.27(5) of the Regulations infringe
her existing Aboriginal right to sell fish and they violate s.35(1) of the Constitution Act
ISSUE:
- How should the aboriginal rights recognized and affirmed by s.35(1) of the CA 1982 be defined?
RULE:
- Modification to the Sparrow test in terms of scope of what aboriginal right is
ANALYSIS:
- Aboriginal rights exist à “because of one simple fact: when Europeans arrived in North America, aboriginal peoples
were already here, living in communities on the land, and participating in distinctive cultures, as they had done for
centuries. It is this which separates aboriginal peoples from all other minority groups in Canadian society and which
mandates their special legal, and now constitutional, status”
- Court reiterates that s.35 doesn’t create any new rights, it just reaffirms rights under common law
- Fiduciary relationships of the Crown and Aboriginal peoples means that where there is any doubt or ambiguity with
regards to what falls within the scope and definition of s.35(1), such doubt or ambiguity must be resolved in favor of
aboriginal peoples
- The claimant must demonstrate that the practice, custom or tradition was a central/significant part of the society’s
distinct culture (it made the society what it was)
o Ask whether, without this practice, custom or tradition, the culture in question would be fundamentally altered or
other than what it is
- The time period that a court should consider in identifying whether the right claimed meets the standard of being
integral to the aboriginal community is the period prior to contact between aboriginal and European societies

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- Must have three elements:
(1) Must be an element of practice, custom, or tradition
(2) Has to be a distinctive (identifiable) or integral element to the aboriginal groups culture
(3) Has to be chain of continuity since pre-contact times
§ Requires flexibility à Rights NOT frozen in time, but do need to show some continuation of the practice
§ Metis rights continuity is different because their history is different
- Things to consider – sensitivity to aboriginal history = aboriginal perspective + common law
- If we find a right for a specific group, this doesn’t mean all aboriginal groups will have the right
CONCLUSION:
- Here, prior to contact, trading of fish was only incidental, it wasn’t generalized à no regular trading prior to contact;
therefore, exchanging of fish was not an integral part of their distinctive culture = Van der Peet was convicted

Section 35 TEST: (Sparrow / Van der Peet)

(1) Is there an Existing Aboriginal Right?
à Must be a (1) practice, custom, or traditions which is (2) integral to the distinctive aboriginal culture, with (3) a
chain of continuity since pre-contact times
o Initial burden on claimant to set out scope of right and show it exists prior to 1982
o Crown has onus of showing right was extinguished
Was there an Infringement?
à Look to the purpose and effect of the legislation
à Is the limitation unreasonable? Does the regulation impose undue hardship? Does the regulation deny to the
holders of the right their preferred means of exercising that right? Were they properly consulted?
o Burden is on the claimant
(2) Can the Infringement be Justified?
à Must have a VALID LEGISLATIVE OBJECTIVE: compelling and substantial objective (public interest too vague)
- What are the means used: (1) minimal impairment, (2) adequate consultation, (3) fair compensation, also
consider balancing interests and priority access
à Crown must uphold its fiduciary duty
o Burden on Crown

R v. Gladstone [1996] SCC

FACTS:
- Charged under Fisheries Act with offence of offering to sell herring spawn on kelp
- Claimed that they had an aboriginal right to commercially exploit the herring
ISSUE:
- Is the provision under the Fisheries Act constitutional given s.35?
RULE:
- Priority access for aboriginal peoples does not mean exclusivity
o Aboriginals have a priority in allocation, but not exclusive access
o Courts give more priority to personal use over commercial use
ANALYSIS:
- Commercial right to trade was a protected aboriginal right (wasn’t extinguished) and the legislation did interfere with
that right àtherefore the interference was made out
- Justification – how is this changed with a commercial right?
o There is no inherent limitation to the amount of fish – there is an inherent limit on the amount of fish that a
band can consume or use for ceremonial purposes
- Objectives = conservation, pursuit of economic fairness, historic reliance on particular resources by other groups
o In Sparrow public interest was too vague, but in this case it might be appropriate to consider this objective
o Court talks about the importance of the fishery to the economic well-being of the band – If it is important, then
it makes it harder for the Crown to restrict rights
CONCLUSION:
- Court does not have enough evidence to say whether that level is justified à New trial was required

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Lax Kw’alaams Indian Band v. Canada & Ahousaht Indian Band v. Canada
- The SCC placed further limits of the interpretation of rights that could be claimed to flow from the period just before
European contact
- In assessing a claim to an aboriginal right, the Court must identify the nature of the right being claimed – Court must
determine what is being claimed
- The correct characterization of the appellant’s claim is of importance because whether or not the evidence supports
the appellant’s claim will depend, in part, on what the evidence is being called to support
- An aboriginal right is not frozen in time, it continues to evolve
o An aboriginal rights claim requires a certain degree of specificity
o There are qualitative (kind of right) and quantitative (proportionality) limits on aboriginal rights

T’silhqot’in Nation v. BC [2014] SCC

- The stronger the aboriginal claim the higher the duty to consult
o Sliding Scale TEST (low strength of claim = low consultation ßà high strength = high consultation)
o Some question of if there is aboriginal title, then rather than just duty to consult, that there must be CONSENT
(this is a possibility, but not yet confirmed)
- DO NOT NEED to make a conclusion on how strong or weak a claim is for exam purposes, just that this is how the duty
to consult operates à use best judgement on characterization for exam

Haida Nation v. BC [2004] SCC

FACTS:
- Government was making unilateral replacement and transfer of tree farming licenses without Haida's consent
- Haida objected
ISSUE:
- Are aboriginal groups given right of consultation even if no title claim solidified? YES
RULE:
- Duty to consult arises when:
(1) There is knowledge that there could be an aboriginal right claim
§ Not actual claim established
§ If government has notice that there could be a right claim, this is enough
(2) Anytime the govt does anything that could infringe on an aboriginal right there must be consultation
- Duty to consult is based on the honor of the Crown à a fiduciary duty, owned by government to aboriginal people
- There is also a duty to accommodate for infringement on aboriginal rights
ANALYSIS:
- If a right, a treaty right, or a title right has been infringed à there is a Duty to consult
- At the time, the Haida didn’t have title – this case was known for saying that if there is real or constructive notice of a
potential title or right claim, and there is any chance that this will adversely affect the right, the duty to consult arises
- Both parties have to exercise good faith
CONCLUSION:
- Here there was a title claim and aboriginal right claim à SCC said therefore there was a duty to consult

Beckman v. Little Salmon/Carmacks First Nation [2010] SCC

- The duty to consult stems from the principle of the honour of the Crown
- The scope of the duty to consult will be proportional to the intrusiveness of the infringement
- The government cannot contract out of the duty to consult
o Underscores the idea that the duty to consult is present in all cases that involve aboriginal peoples

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R v. Powley [2003] SCC
à METIS rights mentioned in s.35 so have to be recognized
à Van der Peet mentioned that the test for aboriginal rights may need to be modified for metis – you cannot establish the
rights they had prior to contact because they become metis from contact
àThe Van der Peet test STILL APPLIES but there are some modifications
FACTS:
- Steve Powley and his son were charged with unlawfully hunting moose and possessing game hunted in contravention
of the Game Fish Act of à They both entered pleas of not guilty
- They claimed that as Metis they had an Aboriginal right to hunt for food in the Sault Ste Marie area and that this right
could not be infringed by the government of Ontario without justification
ISSUE:
- What is the correct test to determine the entitlements of the Metis under s.35 of the Constitution Act?
RULE:
Metis Modifications:
- Verification of the Claimant’s membership in the community
o (1) self-identification, (2) ancestral connection, and (3) community acceptance.
- Identification of a relevant time frame
o Time is between first contact and the time of effective control of the group
ANALYSIS:
- The emphasis is on prior occupation as the primary justification for the special protection accorded aboriginal rights led
by the majority in Van der Peet to endorse a pre contact test for identifying which customs, practices or traditions were
integral a particular aboriginal culture and therefore entitled to constitutional protection
o The majority recognized that the pre-contact test might prove inadequate to capture the range of Metis
customs, practices or traditions that are entitled to protection
o The inclusion of the Metis in s.35 is not traceable to their pre-contact as their population arose after contact
§ The constitutionally significant feature of the Metis is their special status as peoples that emerged between
first contact and the effective imposition of European control
o Therefore, SCC stated that the Van der Peet test would still apply to Metis people but with some modifications
Metis Modifications:
- Verification of the Claimant’s membership in the community
o Must prove all three of à (1) self-identification, (2) ancestral connection, and (3) community acceptance.
o Community acceptance acts as a controlling device as Metis status is harder to prove
- Identification of a relevant time frame
o Time is à between first contact and the time of effective control of the group
o i.e. After first contact and before European control
- Everything else in the s.35 rights test from Sparrow / Van der Peet is the same
CONCLUSION:
- Powley was successful in proving their Metis right to hunt

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