Long Summary

Table of Contents
Reading a Charter case............................................................................................................3
Sauvé v. Canada (Chief Electoral Officer) 2002 SCC 68.....................................................................................3
The Patriation Reference......................................................................................................................................3
Charter Analysis – 2 Steps/stages............................................................................................3
Purposive Approach.............................................................................................................................................4
Big M.....................................................................................................................................................................4
Section 33 and Section 1..........................................................................................................4
Limiting Rights: The Emergence of Section 33 and The Evolution of Section 1.................................................4
Section 1.................................................................................................................................5
Structure of a Charter case......................................................................................................6
Charter Application Analysis....................................................................................................6
Oakes TEST..............................................................................................................................6
S Choudhry “So what is the real legacy of Oakes? Two decades of proportionality analysis under the
Canadian Charter’s s. 1” 2006 (p. 795-799).......................................................................................................8
Section 2(b) – Freedom of Expression......................................................................................9
Freedom of Expression: Introduction and Harmful Speech...............................................................9
4 Main Points of the Purpose of the Right (From Keegstra)................................................................................9
Richard Moon, The Constitutional Protection of Freedom of Expression...........................................9
The Role of Underlying Rationales in Freedom of Expression Cases................................................10
Irwin Toy TEST (approach to 2(b))....................................................................................................................11
Keegstra..............................................................................................................................................................12
Ward + Whatcott................................................................................................................................................14
Section 32 – Application of the Charter..................................................................................15
RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573...........................................................................................15
McKinney v University of Guelph, 1990, SCC...................................................................................................16
Stoffman v Vancouver General Hospital (1990) SCC........................................................................................17
Douglas College (1990) SCC.............................................................................................................................17
Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia
Component (2009) SCC......................................................................................................................................17
Non-Governmental Entities Implementing Government Programs.................................................18
Eldredge v British Columbia (Attorney General), 1997, SCC............................................................................18
Vriend..................................................................................................................................................................18
Section 7 – Life, Liberty and Security of the Person................................................................18

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 Section 7 Structure and Analysis.....................................................................................................18
Principles of Fundamental Justice......................................................................................................................19
Re BC Motor Vehicle Act, 1985, SCC.................................................................................................................20
Section 7 and Bodily Integrity.........................................................................................................22
R v Morgentaler [1988] 1 SCR 30......................................................................................................................22
Sex Work.......................................................................................................................................25
[Bedford] Canada (Attorney General) v Bedford, 2013 SCC............................................................................25
Three conceptual baskets of Principles of Fundamental Justice......................................................27
Medically Assisted Dying................................................................................................................28
Carter v Canada (Attorney General), 2015 SCC...............................................................................................28
Section 241.2 – MAiD Legislation......................................................................................................................31
Proposed MAiD Amendment..............................................................................................................................32
Bill C-7...........................................................................................................................................33
Section 7 and Social Citizenship......................................................................................................34
Gosselin v Quebec (Attorney General) 2002 SCC 84.........................................................................................34
Chaoulli v Quebec (Attorney General) 2005 SCC 35.........................................................................................37
Cambie Surgeries (Lorian Hardcastle)..............................................................................................................39
Section 15 – Equality Rights...................................................................................................39
Introduction and Early Application.................................................................................................40
Andrews v Law Society of British Columbia (1989) 1 SCR 143.........................................................................40
ANDREWS TEST................................................................................................................................................41
Differential Treatment...................................................................................................................43
Eldridge v British Columbia (Attorney General), (1997) 3 SCR 634.................................................................43
The Kapp Test................................................................................................................................44
R v Kapp, 2008 SCC 41......................................................................................................................................44
Applying Kapp................................................................................................................................46
Quebec and A......................................................................................................................................................46
R v Fraser, 2020.................................................................................................................................................48
Climate Change and the Charter – Emerging Possibilities................................................................50
Mathur v. Ontario, 2020 ONSC 6918.................................................................................................................50
Section 2(a) – Freedom of Religion........................................................................................50
Sunday Observance – The Early Cases: Big M, Edwards Books........................................................50
R v Big M Drug Mart Ltd, (1985) 1 SCR 295.....................................................................................................50
R v Edwards Books and Art Ltd, (1986) 2 SCR 713...........................................................................................51
The Restriction and Accommodation of Religious Practice: Amselem..............................................51

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 Syndicat Northcrest v Amselem (2004) SCC......................................................................................................51
Freedom of Religion Analysis.............................................................................................................................52
The Restriction and Accommodation of Religious Practice: Hutterian Brethren...............................52
Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37..........................................................................52
Religious Organizations and Institutions.........................................................................................52
TWU (no. 1) – Trinity Western University v British Columbia College of Teacher, 2001 SCC........................52
TWU (no. 2) – LAW SOCIETY OF BRITISH COLUMBIA V TRINITY WESTERN UNIVERSITY, 2018 SCC 32,
[2018] SCJ No 32...............................................................................................................................................54
KTUNAXA NATION V BRITISH COLUMBIA (FORESTS, LANDS AND NATURAL RESOURCE
OPERATIONS) 2017 SCC 54, [2017] 2 SCR 386..............................................................................................56

Reading a Charter case

● All Charter cases are similar in terms of their structure
● 2 steps + Remedy if claim is successful
○ Rights holder (claimant) establishes that a right has been violated
● Claimant has to prove this on the balance of probabilities
● Court considers what behaviours are protected by the right in question
○ Justification – based on s. 1 of the Charter – Government bears the burden
○ What is the appropriate remedy?
● Comes from s. 52 of the CA
Sauvé v. Canada (Chief Electoral Officer) 2002 SCC 68
Why is Sauvé Important?
● We get to see the structure of a Charter case
● We see a back and forth between McLachlin and Gonthier, disagreeing on how to
approach section 1 in this case where there is no clear scientific evidence
○ The big question is when should Courts be deferential in their Section 1 analysis?
○ Should we be stringent on the evidence required (McLachlin) or flexible
(Gonthier)?
● The idea of dialogue between the SCC and the government
○ Remember the original provision completely disenfranchised prisoners
● The way you structure your objective is going to affect how the means are assessed and
what needs to be proved

The Patriation Reference

Charter Analysis – 2 Steps/stages

Stage 1:
 Has a Charter right been breached by a state act?
 Burden of proof is on complainant, on a balance of probabilities.
 If violation is established, go to stage 2.

Stage 2:

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  Can the state demonstrate that it was justified in violating the collective right? (Section1)
 Burden of proof is on the State, on a balance of probabilities.
" Section 1: when, if ever, is it right for non-accountable, unelected judges to thwart the will of
a democratically elected legislature, and stop its function?

Purposive Approach
 Judgement about the scope/value of a particular right can be made only after the court has
specified the purpose underlying the right or delineated the nature of the interests it is meant to
protect
 Hunter v Southam highlights this point
 R v Big M Drug Mart: proper approach to Charter cases is purposive one to be understood in light
of the interests it was meant to protect, with a generous rather than legalistic interpretation
o Charter was not enacted in a vacuum and must be placed in its proper linguistic,
philosophic and historical contexts
Big M
Four things a court engaging in purposive analysis will do:
1. Look at the character and the larger object of the Charter itself
2. Look at the language used in the particular provision
3. Look at the historical origin of the enshrined right
4. Look at where the provision sits in the Constitution

Section 33 and Section 1

Limiting Rights: The Emergence of Section 33 and The Evolution of Section 1
Section 33 Provision:
33. (1) 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 section 2
or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have
such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such
earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under section (1).

(5) Section (3) applies in respect of a re-enactment made under section (4).
Description

Description:
 The “Notwithstanding” clause
 Section 33 allows government to temporarily “opt out” of compliance with the Charter
 Provides an option for both provincial and federal governments to opt out of the Charter; Charter can’t be
used to be find legislation unconstitutional
 Only applies to s 2 or s 7-15
 5-year limitation period to opt out of Charter; longest time a democratically elected legislature can be in
power

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Section 1
Guarantee of Rights and Freedoms:
Section 1 guarantees the Charter rights
Provision:
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.

Limitations clause:
Only criteria for justification of infringement is reasonable limits, prescribed by law.
 Limit must be prescribed by law:
 Can only create justifications to violations that they have actually created as law
 Something is prescribed by law if expressly in legislation, or if it results from the
application of common law
 Evidence that the legislature considered its acts and decided to enact it as
legislation
 If the terms of authority didn’t include the violation, then it did not arise by law
 What is a reasonable limit? Is the limit simply the result of arbitrary action?

Prescribed by law:
 Prescribed by law interpreted as a 2-step analysis:
o 1) is the limit on the right authorized by law
o 2) does the law have the required degree of precision?
 R. v. Therens (1985) SCC
o Prescribed by law is concerned with the distinction between a limit imposed by law and one that
is arbitrary. 776
o It safeguards the public against arbitrary limits on charter rights. 780
o Limit must be expressly provided by statute or regulation, results by necessary implication from
the terms of a statue or regulation. Or, the limit may result from the application of a common
law rule. 777
o Case related to accused having been required to take a breathalyser test without being
instructed of right to counsel. 777
 Courts have been reluctant to set too high a standard for the prescribed by law requirement, concerned
that an excessive emphasis in language may unduly restrict legislatures in accomplishing their objectives.
 E.g. Irwin toy v Quebec (1989) – absolute precision rarely exists.
o Corporation brought s. 2(b) Charter claim against a Quebec law which prohibited commercial
advertising directed at children under the age of 13. 777
o Court found that restriction was sufficiently clear to satisfy prescribed by law standard and went
on to uphold the law as a justified restriction on s. 2(b). 777
 Many cases, courts deal with whether law is too broad at second part of s. 1 – the Oakes test. 778

How to interpret Section 1?

 What is a good justification?
 Whether or not something is reasonable and demonstrably justified in a free and
democratic society.

Rights granting provisions

 And limitations/justifications

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Structure of a Charter case
1. Has a right been violated by a state action?
• Involves defining the right – what does the right entail?
• Must give the right a broad and purposive interpretation
• Burden on claimant
2. Is the violation justified?
• Section 1 Analysis
• Burden shifts to the state
3. Is there a remedy?

Activist or Deferential?
When are Courts activist vs deferential? Why?
• Cases where the legislature is mediating between competing claims of groups,
makes a reasonable effort amid unclear evidence, allocating scarce resources
• Cases where the government is singular antagonist of the individual whose rights
are being violated

Charter Application Analysis

Need to Ask:
1. Is the entity government?
• If yes, then that entity will always be bound by the Charter
• If no, the Charter may still apply, look to question 2
2. Is entity exercising government power or implementing government policy?
• i.e., is the activity a government activity?

• Really looking at the level of control exercised by the government over entity

Oakes TEST
p.783 (1986, Dickson J.)
 When and how a govt can justify a limitation.
 Rebuttable presumption goes against presumption of innocence
 Stringent standard  what kind of proof/onus do you ask of govt?
 Can’t just say so, there must be rigorous, demonstrable evidence
 Courts must be careful that the Charter doesn’t become a tool of more advantaged persons to peel
back the rights which are intended to benefit or protect the disadvantaged

Oakes TEST
Means-end analysis
2-step test:
(1) Pressing, substantial objective which government is trying to achieve through the legislation
 Government must have a significant objective for what it is trying to do through this
legislation that has violated constitutional rights
 The purpose needs to be of sufficient importance to warrant overriding a constitutionally
protected right or freedom

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  Very rare for the case to fail at this step
(2) Proportionality: What means does the government use? Are they proportional?
1. Is this a rational way to achieve this objective?
2. Do the rights impairing provisions minimally impair the rights? (is it the least rights-violating
means of achieving the end?)
3. Overall proportionality between the rights and the rights-violating provision.
 Rational Connection: Law must be rationally connected to the objective
- The measures need to be designed to achieve the objective
 Minimal Impairment: The means should impair “as little as possible”
- This is where most of the work is done
 Final Balancing between the deleterious and salutary effects
- Outline the harm caused, the benefit achieved - are they proportionate?

Oakes Commentary:
Commentary (p. 786-789):
1. Courts rarely find that restriction fails on first part of Oakes test. Exception is R. v. Big M Drug Mart
(1985) SCC.
2. Purpose should be based on when the legislation was drafted, not a shifting purpose over time. 786… but
some confusion about that e.g. R. v. Butler (1992) SCC
3. When court finds that a restriction cannot be justified under s. 1, its decision is most often based on the
minimal impairment requirement. 786
o Fails on this step when the court considers that a small or debatable decrease in the law’s
effectiveness in achieving its substantial and pressing purpose will significantly reduce its
interference with the protected right
4. Third part of Oakes test (deleterious effects test) – requires a proportionality between the effects of the
measures that are responsible for limiting the Charter right or freedom, and the objective that has been
identified as of sufficient important. 787
o Even if the objective itself is important, still possible that the actual salutary effects will not be
sufficient to justify these negative effects
o Dagennis: there must be a proportionately between the deleterious effects of the measures which
are responsible for limiting the rights/freedoms in question and the objective, and there must be a
proportionality between the deleterious and salutary effects of the measures
o Relatively little weight given to this step
5. 2 important development since Oakes.
o 1) emergence of contextual approach to assessment of limits under s. 1. Requires for the court to
assess the value/significance of the right and its restriction in their context rather than in abstract.
789
o 2) court’s willingness to defer in certain circumstances to the legislature’s judgement about the
need for effective limits on a Charter right.
 Deference linked to context. Deference is appropriate in some contexts more than in
others.
6. Quite a bit of disagreement among the SCC related to both developments. 789

S Choudhry “So what is the real legacy of Oakes? Two decades of proportionality
analysis under the Canadian Charter’s s. 1” 2006 (p. 795-799)
 Broader lesson from Oakes is the need to tailor judicial review to the unique context of each case. 795
 In my view, Oakes created an enormous institutional dilemma for the Court, by setting up a conflict
between the demand for definitive proof to support each stage of the s. 1 analysis, and the reality of policy
making under conditions of factual uncertainty. 796

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  Legacy of Oakes is that the central question of s. 1. Is how the Court should allocate the risk of factual
uncertainty when governments legislate under conditions of imperfect information.
 Not only has the court failed to recognize this as a central question; it has failed to adopt a consistent
approach in how it answers it.
 Set out stringent test and made empirics central to every stage of the test. 796
o “Where evidence is required in order to prove the constituent elements of a s 1 inquiry, and this
will generally be the case, it should be cogent and persuasive and make clear to the court the
consequences of imposing of not imposing the limit”
 In the actual Oakes case, would it have been possible to provide evidence meeting the civil standard of
proof mandated by Oakes with respect to each constituent element of the test?
o What kind of proof would have sufficed?
 Public policy if often based on approximations and extrapolations from the available evidence, inferences
from comparative data, and, on occasion, even education guesses
 From McKinney v UoG: “decisions on such matters must inevitably be the product of a mix of conjecture,
fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of
society” 796
 Oakes approach to interpreting s. 1 has created a major institutional dilemma for the Court, given the
practical reality that public policy is often made on the basis of incomplete knowledge. 797
 Who should bear the risk of empirical uncertainty with respect to government activity that infringes Charter
rights? 797
 One answer would be that gov bears the onus
o But this may be too high a bar to set for governments
o may be impossible to prove with scientific certainty that the means chosen to combat the problem
actually will do so and that other less intrusive means to tackle the problem are equally effective
o La Forest in RJR-MacDonald: “could have the effect of virtually paralyzing the operations of
government…”
 Another would be to not require gov to adduce a factual record at all. 797
o But this reads out requirements that reasonable limits be demonstrably justified.
 Court has struck a compromise: in cases which there is conflicting of inconclusive social science evidence,
the question is whether the gov has a “reasonable basis” for concluding that an actual problem exists, that
the means chosen would address it, and that the means chosen infringes the right as little as possible. 787 –
reasonable basis test.
 Some disagreement about what kind of inference governments are entitled to draw from inconclusive
evidence. 797 e.g. RJR MacDonald
 Court has also split on the circumstances in which it is appropriate to apply “logic” or “common sense” to
surmount an absence of evidence. 798 e.g. Thomson newspapers co v Canada & Harper v Canada
 In Thomson Newspapers co v Canada – majority attempted to set limits on when it could accept the
existence of harm without evidence. It suggested that its common sense or logic approach to the existed of
harm applied to hate speech and pornography b/c possibility of harm is within everyday knowledge of
Canadians. 798
 This is different from Harper v Canada where they accepted that empirical evidence re harm was difficult
or impossible to measure, but the court was willing to reason both that the harm existed and that the cure
was effective. 798
 Court has yet to work out under which circumstances it will use common sense, reason or logic to
bridge an absence of evidence and to delineate when it will allow inferences to be drawn from
inconclusive social science evidence

The Notwithstanding Clause: Section 33

How Section 1 has evolved as the Courts grapple with the question of when a
rights violation is “reasonable.”

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Section 2(b) – Freedom of Expression
Freedom of Expression: Introduction and Harmful Speech
Provision:
2.Everyone has the following fundamental freedoms
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of
communication.
● Protected under section 2(b)
● Seen as a core value in democratic society
● The language of the section is broad: “everyone”

4 Main Points of the Purpose of the Right (From Keegstra)

Utilitarian Rationale
Essential part of democracy

Truth Rationale
Free expression is an essential pre-condition to the truth being found/established
Free marketplace of ideas, where expression is valued and respected
Access to the media, but this can lead to power imbalances
Another issue = the dangers of open-access internet, leads to a dilution of the truth and a
distortion > anyone can post anything, our words can be easily misconstrued, used against us.

Self-Actualization [intrinsic value of self-expression]

Good life, being able to express yourself in the way you want. The value of expression

Relational Values Stemming From Expression

Leads to community
Individuality can also be actualized in relation to others
Creation of expressive community > social agency
Allows us to participate > collective self-governing structures
Sometimes expression can be harmful (Professor Moon’s arguments)
Richard Moon, The Constitutional Protection of Freedom of Expression
 Does not simply protect individual liberty from state interference
 Protects individual’s freedom to communicate with others
 Structure of constitutional adjudication, reinforced by an individual’s rights culture, tends to
suppress the social or relational character of freedom of expression and its distributive demands
(concern about the individual’s effective opportunity to communicate with others)
 Recognition of social character of freedom of expression critical to understanding both the value and
potential freedom of expression and to addressing questions about the freedom’s scope and limits
 FoE valuable because human agency and identity emerge in discourse
o We become individuals capable of thought and judgement and develop a rational and feeling
persons when we join in conversation with others
o Traditional accounts of value of FoE (i.e. democratic, truth, sel-realization) represents a dimension
of the constitution of human agency in community life
 However, expression can cause fear, it can harass, and it can undermine self-esteem
 Expression can also be deceptive or manipulative
 Value of FoE rests on social nature of individuals and the constitutive character of public discourse

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  This understanding of freedom inhibited by the individualism that dominates contemporary thinking about
rights
 Once we recognize that individual agency and identify emerge in social relationship of communication, the
traditional split between intrinsic and instrumental accounts of the value of FoE will dissolve
 Expression connects the individual with others, while contributing their capacity for understanding and
judgement, to engagement in community life and to her participation in a shared culture and collective
governance
 We value truth not as an abstract social achievement but rather as something that is consciously
realized by members of the community, individually, and collectively, in the process of public
discussion
 We value FoE not only because it provides individuals with useful political information but more
fundamentally because it is the way in which citizens participate in collective self-governance
o No way to separate the goal from the process or the individual good from the public good
 FoE are also categorized as either “listener” or “speaker” centered
o Listener-centered emphasise rights of the listener to hear and judge expression for herself;
protected as a matter of respect for autonomy as a ration agent/for its contribution to social goals
such as development of truth or democratic government
o Speaker-centred emphasize value of self-expression; individual’s freedom to express himself is
part of his basic human autonomy or is critical to his ability to direct the development of his own
personality
 Focussing on speaker and listener interests misses central dynamic of the freedom, the communicative
relationship in which the interests of the speaker and listener are tied
 The activities of speaking and listening are part of a process and a relationship

The Role of Underlying Rationales in Freedom of Expression Cases

o SCC has distinguished between two different inquiries in s 2(b) cases depending on nature of the limit on
freedom of expression
1. Where the purpose of the governmental measure is to “restrict content” by singling out particular
content (ex. children’s advertising), controlling access to content (ex. French-only content), or by
controlling the ability to convey meaning (ex. banning posters), then the measure “necessarily
limits” the guarantee of freedom of expression and the judiciary inquiry moves to s 1
2. Where a measure is content neutral and limits only the “physical consequences of certain human
activity” (ex. noise by-law), then the law limits freedom of expression not in its purpose but in its
effects
 Claimant must demonstrate that the expressive activity promotes or reflects at least
one of the principles underlying the guarantee (i.e. self-government, truth and
individual fulfillment) > Keegstra Principles

Info:
 SCC, on occasion, has been prepared to vindicate freedom of expression rights by denying jurisdiction to
provinces to enact laws in regard to speech
 In Alberta Press Case:
o Alberta’s legislation would have permitted substantial governmental interference with the
operations of newspapers in province
o According to court, this was beyond provincial competence b/c it curtailed the right of public
discussion and trenched on federal criminal law power
 However, these cases are exceptional as provinces continued to have authority to regulate expressive
activity in so far as it related to matters failing within s 92 (regulations of streets, parks, zoning by-laws,
etc.).

Irwin Toy TEST (approach to 2(b))

Two steps:

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 1. Is the activity within the sphere of conduct protected by 2(b)?
 Excludes violent activity
 Such as Democratic discourse;
 Truth Finding;
 Self-fulfilment
2. What was the legislative purpose of the activity?
 Such as trying to control bad activity, like littering, or noise control, for example

In other words -
Step 1: Is Claimant’s Activity within the sphere of conduct protected under free expression?
• The Court defines expression broadly
• Any activity that “attempts to convey meaning”
• Expression has both content and form
• Activity is expressive if it attempts to convey meaning (its content)
• If it is trying to convey a meaning that it is prima facie an expressive activity
Step 2(a): Was the purpose of the legislation to restrict free expression?
• Is the government restriction aimed at restricting content?
• Is the government controlling access to information by restricting the form of expression or by
controlling someone’s ability to convey meaning – Is there a colourable attempt to restrict?
• OR is the government simply trying to control the consequences of human activity?
 i.e. noise by-law
 Littering by-law
• What these questions are teasing out is trying to allow for legitimate time, place, and manner
restrictions
 Court is formulating a reading of 2(b) which excludes certain kinds of expression

Step 2(b): Was the effect of the government’s action to restrict free expression?
• Even if its not government’s purpose to restrict expression, the complainant can still
argue a violation of s. 2(b) if the effect on the complainant is to limit expression
 Court is trying to make sure that all violations of 2(b) are legitimately considered
• Burden of proof on the Pl to demonstrate that the government restricted freedom of
expression throughout this analysis.
 To demonstrate this plaintiff must state claim addresses at least one of the
principles and values underlying free expression:

SECTION 1 ANALYSIS:
• s. 248/249 are prescribed by law
Oakes
• Pressing and Substantial Purpose?  YES
• Proportionality
• Rational Connection - Yes
• Stopping advertising is a rational way of protecting children
• Minimal Impairment
• Yes, minimally impairing
• Court is being deferential

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 • Final Balancing – It is proportionate
2(B) ANALYSIS SUMMARY:
Sphere of Conduct (Threshold)
1. Does the expression in question fall within the scope of the protection?
● Any activity or communication that conveys meaning, or attempts to convey meaning
(Irwin Toy)
● There are exclusions: no violence, no threat of violence, some locations

Purpose/Effect
2. Does the law, in purpose or effect, restrict Freedom of Expression?
● (a/b) Can be one or the other (purpose or effect)
● Claimant must show that she’s being limited in expressing something that promotes at
least 1 of the Keegstra principles (very low threshold)

Commentary
 Irwin Toy introduced a distinction between those cases in which the government is seeking to mediate the
interests of competing groups vs those cases in which the gov is the singular antagonist of the individual
whose rights have been infringed. The former warrants more deference. 793
 At least 3 ways court can defer to legislature:
1. Judicial deference to relevant findings of fact by the legislature (i.e. government relied on social
science evidence)
2. Judicial deference to the legislature’s accommodation of competing values or interests (Reason
could be court’s lingering doubts about the legitimacy of second-guessing the value of democratic
institutions; when it recognizes that the legislature is making a reasonable attempt to protect the
interests of a vulnerable group or to accommodate complex “private” interests)
3. lowering of the standard of justification under s.1. 794

Keegstra
The landmark case (R. v. Keegstra) tested the balance between the right to freedom of speech
outlined in the Canadian Charter of Rights and Freedoms and the law's limits on hate
speech stipulated in the Criminal Code. The case came before the Supreme Court of Canada in
1990 and 1996.

What are the judges disagreeing about?

 The risk of self-censorship

Hate Speech:
 Hate speech restricted or regulated by both federal and provincial laws
 Criminal Code: prohibits three types of “hate propaganda”:
o S 319(1): prohibits the advocacy or promotion of genocide
o S 319(1): prohibits the incitement of hatred against an identifiable group, when this incitement is
likely to lead to a breach of the peace
o S 319(2): prohibits the wilful promotion of hatred against an identifiable group
o S 320: enables a court to order the seizure or erasure of material that the court determine to be
“hate propaganda”
 Criminal Code prohibitions adopted pursuant to recommendations made by the Special Committee on Hate
Propaganda

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Facts:
 High school teacher charged under CC s. 319(2) with unlawfully promoting hatred against an identifiable
group by communicating anti-Semitic statements to his students.
 Law bans wilful promotion of hatred, with the exception of truth, engaging an argument on religious
subject, discussion for public benefit, reasonably believed what you’re saying is true, or are actually trying
to lessen feelings of hatred.
 Df argued that s. 319.2 unjustifiably infringed his freedom of expression as guaranteed by s. 2(b).

Keegstra 2(b) analysis:

Section 2(b) Test (Irwin Toy)
• The first step of the Irwin Toy analysis requires a determination of whether the
allegation of infringement of freedom of expression falls within the ambit of Section
2(b) of the Charter.
• Under this first step, the majority concluded that expression is protected when
it attempts to convey a meaning. Dickson further asserted that the meaning or
message of the expression was irrelevant even if, as in this case, it publicly
promoted hate.
• The second step in the Irwin Toy analysis requires a determination of whether the
government action had been taken in order to restrict freedom of expression.
• Dickson concluded that Section 319(2) sought to prevent a particular
expression and thus satisfied the second part of the analysis.
Keegstra section 1 analysis:
Can these rights limiting provisions be demonstrably justified in a free and democratic society?
First – Prescribed by Law/Pressing and Substantial Purpose
• Using Oakes where first it had to be established that the objective of the legislation was
of a pressing and substantial nature.
• Dickson determined that the objective of the legislation was indeed pressing and
substantial because expression promoting hatred to identifiable groups unduly inhibits
multiculturalism in Canada. – It is harmful to vulnerable groups
• Second – Proportionality
• Rational Connection
• Minimal Impairment
• Final Balancing
Keegstra Dissent:
• Justice McLachlan’s dissenting opinion did agree with the majority judgment that freedom of
expression had been infringed pursuant to Section 2(b) of the Charter. However, it did not agree
that the limitation to freedom of expression was justifiable and reasonable under Section 1 of the
Charter.
• McLachlin asserted that the criminal aspect of the limitation to freedom of speech that Section
319(2) imposes could produce a chilling effect, primarily because it could deter legitimate
expression and cause uncertainty as to whether a particular expression could be prosecuted.
• The dissenting opinion also rejected the notion that criminal prosecutions can reduce racism and
hate propaganda.
• Finally, McLachlin submitted that the limitations established in Section 319(2) suffer from
vagueness and broadness

Ward + Whatcott
 Systemic discrimination and impacts

13
Saskatchewan Human Rights Commission v. William Whatcott

Issues:
Human Rights Code vs freedom of Express Charter guarantee
What is the correct process, and which contextual factors should human rights administrative
decision-makers and courts consider, when applying hate propaganda provisions of human
rights legislation so that free expression is not unduly limited, the right to be free from
discrimination is protected and the State’s obligations to protect citizens from incitement to hate
is met

(SCC in Brief)
Facts:
 The Respondent, on behalf of the Christian Truth Activists, distributed four flyers in the mailboxes of
various homes in Saskatoon and Regina in 2001 and 2002.
 Four persons who received the flyers filed complaints alleging that the material in them “promotes
hatred against individuals because of their sexual orientation” in violation of s. 14(1)(b) of the Code.
 The Applicant appointed a Tribunal to hear the complaints.
 The Tribunal concluded that the flyers contravened the Code.
 The Respondent appealed, arguing that he was exercising his right to freedom of expression and
freedom of religion and that the flyers do not violate the Code.
 Alternatively, he argued that if the materials exhibit hate, it is directed towards sexual behaviour,
which is not a prohibited ground.
 If sexual behaviour is a prohibited ground within the meaning of sexual orientation, he argued that it
is overbroad and should be inoperative to the extent that it conflicts with s. 4 and 5 of the Code and s.
2 of the Canadian Charter of Rights and Freedoms.

Analysis:
Step 1:
What is meant by “hatred” in the provision s.14?
Must be “strong and deep felt emotions of destruction and vilification” not merely offensive or
hurtful expression
Step 2:
Is the provision thus interpreted constitutional?
Section 1 >
 suppressing hate speech is a pressing and substantial objective
 Not all expression is equally valuable (relates to Keegstra, protects political discourse)

Case No 39041 Mike Ward v. Commission des droits de la personne et des droits de la jeunesse
(Quebec) (Civil)

Section 32 – Application of the Charter

Provision:
32.(1) This Charter applies:

14
a. to the Parliament and the government of Canada in respect of all matters within the authority of Parliament
including all matters relating to the Yukon Territory and the 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.
Introduction:
 Not all actions are subject to the Charter and not all inaction gives rise to the possibility of a successful
Charter claim
 Lies in the interpretation of s 32 (1)
o Applies to Parliament and gov’t of Canada in respect to all matters within the authority of
Parliament including Yukon & NWT
o Applies to legislature & gov’t of each province in respect of all matters within the authority of the
legislature of each province
 Dolphin Delivery was first decision in which SCC determined that Charter does not apply directly to private
actors nor does it apply to litigation b/w private parties resolved solely on basis of common law

Governmental Action:
 In Greater Vancouver Transportation Authority v Canadian Federation of Students-British Columbia, 2009
SCC, Justice Deschamps summarized law on application of Charter:
o There are 2 ways to determine whether the Charter applies to an entity’s activities: by enquiring
into the nature of the entity of by enquiring into the nature of the activities
o If entity is “government” (because of nature or government exercises significant control over it)
all of its activities will be subject to charter
o If entity is not governmental, but performs governmental activities, only those activities which
can be said to be governmental in nature will be subject to the Charter
Governmental Actors
 If entity is part of gov’t, then Charter will ordinarily apply to all of its actions
 Evolving case law has established that there are two ways for an entity to be considered part of the
government:
o The government exercises significant control over it; or
o It is governmental in nature (exercises governmental functions
Charter application Takeaways:
• Look at the entity and ask whether it is government
• In some cases this will be obvious
 In other cases you will need to look at the level of control exercised by the government over the
entity – keeping in mind cases that we have read (McKinney)
 Look at whether the entity is exercising a government function or implementing a government
policy
• Remember the Charter does apply to government inaction

RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573

Issue: Whether a courier company could obtain an injunction to restrain a union from picketing
its premises
1. Does the injunction violate s.2(b) and (d) of the Charter?
2. Does the Charter apply to the common law?
3. Does the Charter apply in private litigation?
Decision:
Appeal dismissed.

15
Facts:
● Union represented employees of another courier company (RWSDUnion)
● Dolphin Delivery was not part of that dispute (secondary picketing)
● BC Courts held: picketing constituted a tort of inducing a breach of contract (private law)
and they granted an injunction to prevent it
● But under Federal jurisdiction there was no provision against secondary picketing, and it
fell to common law. SCC at common law upheld the injunction.
Ratio: a court order, when issued to resolve a dispute between private parties based on the
common law, is not governmental action to which the Charter applies
Takeaways:
 The overarching issue is whether the Charter applies to the Common Law. Courts create and modify
the Common Law.
 Canada Labour Code was silent on secondary picketing thus it remained a common law problem. So
the Charter did not apply.
 HOWEVER, Charter is “indirectly applicable” to all parts of the common law
 In purely private litigation, the Charter is only relevant in so far as the common law should be
developed in a way that is consistent with Charter values

 The Charter applies to the common law, but only insofar as the common law
is the basis of some governmental action that, it is alleged, infringes on
the Charter; therefore the Charter only applies to government action; it does
not apply in cases between two private parties.
 Court orders are not government actions.
 "Government" in s.32(1) of the Charter refers to all branches of the federal
and provincial governments.
 The courts must abide by the Charter, and apply the common law in a
manner consistent with it, but their orders cannot be challenged on the basis
of the Charter in a case between two private parties.

McKinney v University of Guelph, 1990, SCC

The Claim: Mandatory retirement policy at the University of Guelph violated Section 15
Issue: Does the Charter apply to the actions of the university?
Decision: Guelph’s Retirement policy is not government action
Majority:
• Majority emphasizes that private action was deliberately excluded from the Charter
(takes a small state approach)
• Just because an entity is a creature of statute does not mean the Charter will apply - we
need to look at control
○ The Charter does not apply when the body is not actively supervised or directed
by any state actor
○ The policy was not made at the behest of government
• Contrast universities to municipalities - they enact laws, there are penalties for non-
compliance, whereas governments don’t have any legal power to control universities
Dissent:
• Justice Wilson says government plays a role in a wide variety of contexts

16
 • Sets out the three test to help determine whether the Charter applies
1. The Control test
2. Government function test (does the entity take over a government function)
3. Statutory authority and public interest (entity acts pursuant to government authority)
Justice Wilson thinks all three are satisfied here.

Stoffman v Vancouver General Hospital (1990) SCC

 Involved a challenge by doctors at the Vancouver General Hospital to a hospital board regulation that
established a policy of mandatory retirement at 65
 14 out of 16 members of the board were appointed by the government
 Governing statute required that all regulations be approved by Minister of Health Services and Hospital
Insurance
 Majority: hospital was not part of government nor was the regulation in issue
 Majority emphasised that routing control of the hospital was in the hands of the hospital’s board of
trustees rather than in the hands of the provincial government
 The provisions of public service, even one as important as health care did not qualify as government
function
 Challenge of a group of physicians to a mandatory retirement set by the board
 4/16 members of the Board were government appointments
 Governing statute said all hospital regulations approved by government
 Court concluded this was not an act of government because the day to day control was in the hands of the
board of trustees rather than the government
 So yes, there was more government oversight but this was still in the hands of trustees, the government did
not dictate or require the regulation

Douglas College (1990) SCC

 Involved a challenge to a mandatory retirement provision in a collective agreement between a college and
a union
 Affairs of college were managed by a board appointed by the provincial government
 The misters was allowed to establish and issue directions and approved all bylaws of the board
 Court concluded that Charter applied
 Distinguishing feature was that the boarded is not only appointed and removable at pleasure by the
government, but the government may at all time by law direct its operation
 It is simply part of the apparatus of government both in form and in fact

Greater Vancouver Transportation Authority v Canadian Federation of Students –

British Columbia Component (2009) SCC
 Whether two corporations that operated public transportation systems in BC had violated the Charter’s
guarantee of freedom of expression by refusing to accept political advertising on the sides of their buses
 Court found both were bound by Charter and that their advertising policies had to be rewritten to comply
with 2(b) of Charter
 Translink was not itself part of apparatus of government but it was governmental in light of the
substantial control that the Greater Vancouver Regional District exercised over it

Non-Governmental Entities Implementing Government Programs

Eldridge v British Columbia (Attorney General), 1997, SCC
Facts:
 Deaf patients wanted to receive services in sign language as part of provincial health care plan.

17
 Decision: Court found the Charter applied BECAUSE the hospital (private entity) was performing activities in
furtherance of a specific governmental program or policy
● This is an example of where the private actor may be providing the service, but the government still has
control or responsibility
● It is the government, not the hospital that is responsible for the services
● The government determines what services are medically necessary

 Charter applies to government

 Drawing to draw a line between public and private entities
 Draws on narrow fact-specific determination of what is government
 What do we define as government

What is the role of government in our societies?

Vriend
• Dealing with whether government inaction is bound by the Charter
• Involved a teacher who was fired by King’s College as a result of a policy of disclosure
of sexual orientation
• Issue
• Does the Charter apply to the IRPA in its failure to protect sexual orientation as a
protected ground from discrimination
• Decision
• Yes, the Charter did apply to that failure

Section 7 – Life, Liberty and Security of the Person

Provision:
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.

Section 7 Structure and Analysis

Structure of a s7 Analysis:
• Structure of Section 7 Claim (BC Motor Vehicle) - has an internal limitation
• Applicant shows the law or other state action affected her life, liberty, security
• Applicant must show the effect on his life, liberty, security violated one or more of the
principles of fundamental justice
• Both = s 7 right has been violated

Section 7 Rights Violations:

18
 Life: State interference imposing death or increasing risk of death to person, directly or
indirectly (Carter)
• PHS Community Services Society: Access to life-saving medical
treatment

Liberty: State impinging on “irreducible sphere of autonomy”, when offence stipulates

imprisonment as possible penalty, when making decisions of fundamental personal
importance (Re Bc Motor Vehicle Reference, Morgentaler)

Security: (1) State interference with physical/bodily integrity, and/or (2) serious state-
imposed psychological stress (Morgentaler)

Section 7 Life, Liberty, Security Analysis:

1. Does the impugned law or action interfere with claimant’s right to life, liberty, and/or
security of the person? (BC Motor Vehicles)
a. Applicant must demonstrate sufficient causal connection between the (1) action
and (2) effect on LLS (Bedford)
2. Is the government interference with claimants’ right to life, liberty, and/or security of the
person in accordance with the principles of fundamental justice?

Note: Remember that s 7 most often rewards “negative” obligation. The difference between
positive and negative?
" Positive obligation (hard to enforce): am I asking the government to ensure or do something
so that I can enjoy LLS? “Special circumstances” warranting action?
" Negative obligation (easier to enforce): Am I trying to restrict or prevent the government’s
ability to deprive me of my LLS?

Structure of Section 7 Analysis:

Two Steps:
1) Is one of the protected interests negatively impacted, limited, infringed, threatened?
 What does liberty mean? What does security of the person mean? What does life mean?

IF YES, THEN
2) Is the infringement, negative impact, limitation, threat consistent with the principles of
fundamental justice?
 What are the principles of fundamental justice?

IF NO, THEN: Can the violation of section 7 be justified under section 1

Principles of Fundamental Justice

Principles of Fundamental Justice
• PFJs are “the basic tenets of our legal system. They do not lie in the realm of general
public policy but in the inherent domain of the judiciary as guardian of the justice
system.” (Re BC MotorVehicles)
• Remember: PFJs are not a protected interest, but qualifiers of the right not to be deprived
of life, liberty, and security of the person

19
 • Note: this is a qualitative analysis - an arbitrary, overbroad, or grossly disproportionate
impact on one person’s life is enough to establish a breach. Some similarity in principle
with Oakes test stages, but compares rights infringement with objective (not law’s
effectiveness)
• Check for:
(1) arbitrariness;
(2) overbreadth;
(3) gross disproportionality

Arbitrariness
Law must not be arbitrary
" Deprivation of a right will be arbitrary if it “bears no connection to” the law’s
purpose (Bedford)
" Look for if the infringement has some positive effect on the purpose
" Ask: is there a direct, rational connection between object of measure that causes the 7
deprivation and the limits it imposes on LLS?
Overbreadth
Law must not be overbroad
" So, law could be rational in part, but it overreaches and captures conduct that does
not relate to the legislative objective (Bedford living off the avails analysis)
" “Going too far” - sweeps other types of conduct into its ambit bearing no relation to
its objective
Gross Disproportionality
Laws must not be grossly disproportionate
" The effects (rights infringement) of the law are so disproportionate to the objective
" Does not consider the beneficial effects, but the negative effect on individual vs
purpose of the law
" Example: purpose of keeping streets clean but imposing sentence of life
imprisonment for spitting on the sidewalk

Re BC Motor Vehicle Act, 1985, SCC

Freedom/Liberty
The structure of section 7 –
Re BC Motor Vehicle Act [195] 2 SCR 486
Driving with a suspended license would impose a mandatory minimum 7 days imprisonment.
Regardless of whether the person knew, had received the notice or not, or had taken due
diligence to avoid the suspension. Absolute liability.
This lead to a question of whether this deprivation of liberty violates s7.
Much of the decision addressed the meaning of fundamental justice.
“Adjudication under the Charter”

“Principles of fundamental justice” are a qualifier to the right not to be deprived of life,
liberty…
Facts:

20
 • First major decision addressing the nature and scope of s 7
• Penal liability requires proof of fault; absolute liability offends POFJ
○ Constitutional validity of s 94(2) of the Motor Vehicle Act which stated that
driving with a suspended license was an absolute liability offence
○ Basically the accused would be found guilty once the prohibited act was proved,
even if they were in no way at fault in committing the act
• Guilty whether or not she knew of/received notice of the suspension and regardless of
any due diligence exercised
Issues:
• Imprisonment = deprivation of liberty, so much of the decision addressed the meaning of
fundamental justice
• The principles of fundamental justice are not a protected interest, but a qualifier of the
right not to be deprived of life, liberty, and security of the person
○ Not synonymous with natural justice (ex. having a hearing before impartial and
independent officials)
○ We should interpret PFJs broadly
○ Obviously procedural fairness is important, the Court is not limiting PFJs to
procedural fairness
• Basic principle: morally innocent people should not be punished

Conclusion:
" Not to be interpreted too narrowly, because it will restrict peoples’ rights.
" s. 7 must be interpreted more broadly than ss 8 – 14 because those are the specific expressions of
the right to life, liberty, and security, and s7 encompasses them.

Lamer concluded that absolute liability violates the principle of fundamental justice, specifically
the common law principle that the innocent should not be punished.
 When weighed against the balance of due diligence to keeping bad drivers off the road,
he declared the s 94(2) of no force or effect.

[class notes – long summary]

p.1183 para 16
Lamer J.

Takes the whole issue on. From the beginning there’s been questions about should courts be
asked to do this? Or will judges turn into a “super legislature” that stomps on the toes of the
democratically voted govt. But, it’s too late now, the Charter is here. And it was the elected reps
that MADE the charter! We didn’t ask for this, you gave this to us and we are doing our job in
the role you created for us.
Adjudication under the charter must be free from any doubts AS TO its legitimacy.
But, of course the debate is not over, it depends how you interpret the charter provisions, how far
you take it, how narrowly or broadly you interpret it.

Unlike the Americans, we have “reasonable the limits clause, s1, and the notwithstanding clause
s33”

21
What does the idea of fundamental justice mean?
The principles of fundamental justice are qualifiers for interpreting the Charter provisions.
Is it violating s7? Is it aligned with the principles of fundamental justice?

Para 31
“The basic tenets of the system, and there are things that judges know, it is in the inherent
domain of the judiciary, something in their wheelhouse, something they are comfortable doing
which is already part of their job. As long as we make sure that as judges we are paying attention
to the fundamental structure of the system we can apply s7 in a way that doesn’t overstep the
bounds of judicial authority. It is a very open approach to s7.”

First s7 case is a criminal law case. If the first s7 case had asked the court for its opinion on
privatized health care, it would have been much harder for the court to take this very strong
stance on their expertise and ability to apply s7. They are familiar with criminal law context and
dealing with individual rights.

Phrase “principles of fundamental justice” has no history!

Section 7 and Bodily Integrity

R v Morgentaler [1988] 1 SCR 30
Security of the Person
R v Morgentaler [1988] 1 SCR 30
1969 abortion exception enacted.

State interference with bodily integrity and serious state-imposed psychological stress constitute
a breach of security of the person.

Facts:
• Operated abortion clinic in Toronto
• Every abortion violated s 251(1) if the Code because the clinic was not an approved or
accredited hospital and therefore had no therapeutic abortion committee to issue
certificates
• 7 judges; 4 judgments
○ 5 in Majority, 2 in dissent
○ None of the majority decisions had more than 2 signatories
What did Justice Dickson say?

Dickson’s decision:
• Interest implicated: security of the person (violation: bodily integrity; severe
psychological stress)
○ Essentially when the state interferes with bodily integrity or imposes serious
psychological stress, at least in the criminal context this breaches security of the
person

22
 • Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets
certain criteria unrelated to her own priorities and aspirations, is a profound interference
with a woman’s body and thus a violation of security of the person
• Takes decision making away from person who should make the decision
• The delay experienced by many women seeking a therapeutic abortion is caused in large
measure by the requirements of s 251 itself
• Standard imposed - filling out criteria if life/health is in danger which had different
meanings in different jurisdictions
Step 2
• Health standard was ambiguous. Therapeutic abortion committees apply widely differing
definitions of health (eg: psych priority for some not others)
• The administrative system is profoundly unfair and the reality is that the defence (the
procedure) is not equally available

Beetz’s Decision:
• Where continued pregnancy does constitute a danger to life or health, the pregnant
woman faces a choice:
1. She can follow the CC procedure which creates an additional medical risk given its
inherent delays and the possibility the state won’t recognize the danger; or
2. She can secure medical treatment without respecting s 251 and subject herself to criminal
sanction
If your life or health is in danger and the criminal law stops you from getting treated, your
security of the person is violated.

Step 2
• It is ok to require an independent medical opinion because the state has an interest in
protecting the fetus (which may override the woman’s right to security of the person)
• BUT the provision creates some delay that is unnecessary. This creation of unnecessary
delay violates the PFJs.
Wilson’s Decision:
Step 1
• Connects to security of the person, but there is also a question of liberty
• The issue here is whether the state can compel a woman to carry a fetus to term, not
about the procedural rules
• Wilson says that women do have access because this is a profoundly personal decision
• She talks about liberty like there is a fence around the individual and she connects it to
human dignity - human dignity requires that you have autonomy to make decisions about
your body
• Liberty in a free and democratic society does not require the state to approve the personal
decisions made by its citizens; it does, however, require the state to respect them
Step 2
• Inconsistent with PFJs because the decision to have an abortion is fundamentally
personal, there is procedural unfairness, and a violation of freedom of consciousness

McIntyre (Dissent):
• Case is about a right to abortion and there is no right to abortion listed in s. 7

23
 • Concerned with the Court entering public policy domain
• Only when laws intervene rights that are protected in the charter should courts intervene

[Long Summary – Class Notes]

[1197 last paragraph.. a woman’s right to her own choice, not to follow the ideals and obligations
of someone else, which may not benefit her or align with her priorities
and aspirations]
WHO’s definition of “health” is a state of physical, mental and social well-being
The provision of s.251 amounts to a Serious procedural flaw to the legal standard.
It is the administrative functions and procedures that create the problem.

p.1201 Beetz J. explanation of the way the statute violates the security of the person.

p.1204, para 3 > why the procedural elements of s.251 make it unfair and therefore violates the
principles of fundamental justice.
Since the procedural elements which cause the violation cannot be separated from the provision,
s. 251 must fail as a whole.
Substantive question of a woman’s right to security of the person, and her right to liberty, in the
context of abortions.
Charter rights give the individual a metaphorical fence the state may not trespass over. The role
of the courts is to map out, piece by piece, the parameters of the fence. (p1205 para 4)
Right to human dignity synonymous to the liberty of making person decisions about one’s own
life.
“It is probably impossible for a man to respond, even imaginatively to such a dilemma not just
because it is outside the realm of his personal experience (although this is, of course, the case)
but because he can relate to it only by objectifying it, thereby eliminating the subjective elements
of the female psyche which are at the heart of the dilemma.” [ j Wilson, p1206]
Why did she say this? Was it right, or problematic for her to say it?
“she is truly being treated as a means to an end which she does not desire but over which she has
no control. She is the passive recipient of a decision made by others as to whether her body is to
be used to nurture a new life” P.1207

[class notes]

Dickson (Lamer concurs) p1196

What’s the interest that’s implicated or violated? (first step in section 7 analysis)
P1197, offers conclusions about what security of the person means…the stat cannot interfere
with bodily integrity. Including serious, state imposed psychological stress is part of that because
it is a criminal provision.

How does this provision violate security?

The encyclopedic submissions of the parties
Bottom of p1197…

24
Timing and delay infringe the physical and psychological security of the person

Second part of analysis

Are these violations consistent with the POFJ?
He says they are not…goes through a list of admin issues, resulting in a failure to comply with
POFJ. Parliament looks like they have created a defense, but it makes it impossible to access
because of the hurtles of the system.

What would you have to do, to meet, to re-criminalize abortion as a defense to his judgement?
His concerns are procedural. Arguably, govt could have re-entered the field by re-criminalizing
by making the defense more available and more accessible, and eliminate any structure that
created unfairness.

Beetz
Also based in the procedural flaws in the system.
His procedural concerns are narrower than Dickson’s, and starts by identifying the state interest
of protecting the foetus. Then moves through an analysis of security of the person.
He concludes that security of the person is violated if a criminal law prevents a person from
obtaining medical treatment when a person’s life or health are at risk. (p1201)
The problem for Beetz, what he was most concerned about were the unnecessary delays. And
time is of the essence, that is inconsistent with the POFJ.

Wilson
Substantive issue.
Can the state actually compel a pregnant person to carry a person to term?
Gets at the actual root question.
So not only security of the person, but also about liberty.

McIntyre(dissent)
Frames it around a right to an abortion, and that right doesn’t exist, it’s not in the charter
anywhere. All legislation interferes with people’s lives and decisions, that doesn’t mean it’s a
violation.

Sex Work
[Bedford] Canada (Attorney General) v Bedford, 2013 SCC
pp.1222 – 1233
Bedford, 2013
Carter, 2015
A more evolved understanding of section 7.

 Preliminary Issue: When can the court revisit issues that have already been decided?

Step 1

25
 • Security of the person problem because legislation heightens the risk for people engaged
in sex work
• AG tried to argue the harm was caused by the choice to engage in sex work, not the
legislation
○ Court dismisses the argument - the law does not need to be the only cause
• The state is making sex work more dangerous
Step 2
• Three key values that come up over and over in PFJs analysis:
○ Arbitrariness - is there a connection between the purpose and the negative effect
○ Overbreadth - Law captures more people/actions than it should
○ Grossly disproportionate - extreme seriousness of an impact outweighs the laws
purpose
• Bawdy house and communication laws are grossly disproportionate - regulating public
nuisance is not proportionate to risking the health and safety of sex workers
• Living off the avails is overbroad (captures people who are not pimps)

[class notes – long summary]

Both are cases where the SCC had previously spoken on the issue:
Bedford – sex work, had already been considered in a reference in 1990, about the same
legislation. The court had already done an analysis on the legislation. So they asked whether they
should even be revisiting this question. But, the first one was a reference, so a bit different.

Carter – the court had already considered access to medically assisted dying Rodriguez, 1990s.
(4-3 majority split found the provisions on assisted suicide to be not violating section 7. The
impact on vulnerable individuals prevented changing the provision – minority struck them down)
In both cases, the trial judge (at first instance) did an amazingly thorough job, which had an
impact on how these decisions are written and conceived. For example, the narrative how sex
workers, how they are perceived, and the evidence showing the best way to respond to the harms
of sex work, and what are the harms.
In Carter, the trial judge, also did a remarkable job hearing, organizing, and constructing the case
so that the SCC can review it. They agreed with the trial judge on most issues, so they gave the
trial judges finding of facts deference. Legislative facts, judicial facts, and social facts (reading
and hearing from experts).

First, court sets up test to see if the question should be revisited.

Sometimes it’s ok for a court to revisit earlier decisions..
If there are new arguments to be made that hadn’t been brought up yet.
Or if there have been significant developments in the larger context and our understanding of
the issue has shifted.
So, they considered it appropriate to reconsider the laws

Second point is how hearings have changed

In Morgentaler, the parties were himself, 2 doctors he worked with, and the attorney general who
charged him, and one intervener, and the attorney general who charged him.
When Bedford happened 25 years later, there were 23 interveners.

26
Practical change, the court increased number of interveners, yet their role is now limited. Used to
be a lengthy factum of 20 pages, and 20-minute long submissions to the court. Now each factum
must be no more than 10 pages, and 5 minutes to speak/make their presentation.

The decision in Canada (Attorney General) v Bedford (p1222)

(unanimous decision)
Govt has taken a strange position on sex work. Sex work is not illegal, yet a lot of activity
surrounding sex work is.

ISSUES: 3 provisions in the criminal code that relate to sex work.

They make it more dangerous to engage in this work, which is NOT illegal.
The provisions were written by a govt with the intent of controlling and cutting down on the
public nuisance caused by sex-workers.
Evidence question (J. Himmel considered 25,000 pages of evidence) establishes the factual
record on which the case is argued on appeal and SCC>

Arguments:
The law makes us conduct our business in an unsafe environment and prevents us from actively
making choices to protect themselves and their work.
Prevents us from screening clients
From hiring legitimate support people who would be able to protect us.
Other side (Crown) – purpose in criminalizing the associated activities is because we think they
create harm, and since you, as a sex-worker chose to do this work, its an unfortunate
circumstance.
The harm in sex work comes from the purchasers of sex-workers, so the law is meant to keep
you safe.
S.7 is clearly engaged because the legislation heightens the risk of ppl who do sex work, risk of
screening clients, of hiring bodyguards or drivers to protect them, divides sex workers in terms
of the ranges of experiences suffered by sex workers. (range of vulnerability)

Court rejects the “choice” argument. Accepts the connection between the challenged legislation
and harm that is suffered. In our view, there is sufficient connection to the harm so that the sex
work being a choice, is irrelevant. The legislation is a contributing factor to the harm suffered.

So, security of the person violation.

Principles of Fundamental Justice (para 96, p1228)

Basic legal values that explain our constitutional order. S7 is about naming as unconstitutional
inherently bad laws.

Three conceptual baskets of Principles of Fundamental Justice

Three conceptual baskets of fundamental justice principles:
1. Arbitrariness (no rational connection between purpose and way the law works)
2. Overbreadth (captures too many people in its overview)
3. Gross disproportionality (excessive harm)

27
Para 111 talks about “what is arbitrary”
Para 112, 113 about “overbreadth”
Para 120-123 about “gross disproportionality”

The benefit to society at large does not get incorporated into the section 7 analysis, it focuses on
the individual claimants, the larger social implications are considered in the s1 analysis.

Para 107:
A law will violent s7 when it is a failures of instrumental of rationality. Failure between purpose
of the law and how the law works.

Difference between s7 and s1 is that s7 is towards the individual, whereas s1 is in the public
realm. Also, there is a measuring going on within the right itself, and then another measuring
going on in the s1 stage. (See section 2.b)

The heavy lifting is carried by the claimant at the first stage because they have to prove that the
right was taken away in context of a certain standard – i.e. in relation to a principle of
fundamental justice.

Post-Bedford:
The decision sparked public debate on sex work, at a time when a number of important debates
on violence against women were taking place.
The govt responded to the decision by enacting new laws in the criminal code (Stephen Harper,
cons.)
New regime which deals with the commodification of sexual activity. Legislation on sexual
activity is based on the “Norway Model” which is intended to criminalize the purchaser, not the
provider.
Criticism that the new legislation drove the work back into the shadows, creating the same risks
of harm for sex workers. Liberal govt promised to revise the laws around sex work, but has yet to
do anything. A few successful challenges, ex – in BC, about the indirect impact of this on sex-
workers.
On the surface, Bedford seemed like a success, but right after, new laws were created which
created the same problems. Relying on constitutional rights is sometimes a risky strategy…
wining in a court doesn’t mean your cause will be advanced by the win.

Medically Assisted Dying

Carter v Canada (Attorney General), 2015 SCC
pp.1234 – 46

Carter v Canada (Attorney General) 2015 SCC 5

The stakeholders:
 People who would take their own lives
 Families of individuals
 Doctors and nurses administering the treatment

28
  Government – If it becomes too freely available, we might divert resources from services and
research which could eventually prevent death or irremediable illnesses.

Key Points
Step 1
• Life - existence of this criminalization may cause someone to end their life earlier than they want
to
• Liberty and security of the person - Court says that the choice to end your life is a fundamental
choice that involves control over bodily integrity
○ Not allowing MAID can interfere with autonomy
○ May condemn someone to intolerable suffering
Step 2
• Purpose of the law is to protect vulnerable people from being induced to commit suicide when
they are feeling weak/unclear
• Main issue is that the law is overbroad because of the total ban
Section 1
• Fails at MI, Canada has not proven that a total ban is necessary, informed consent alternatives

Issue:

Does the prohibition on assisted suicide in the Criminial Code violate s 7? Trial judge identified
catgoery of individuals whose rights are potentially infringed. Identifies the class as competent
adults, who suffer. Grievous and irremediabler medical condition, that causes the person to
endure physical or psychological sufferin that is intolerable to that person, of their right to life,
liberty and security of the person

First Step: Is a protected right engaged?

Right to Life
Foces some individuals to take their own life. So, the sense of needing assistance. Creates
increased risk of untimely death

Liberty
Law interfers with a person’s response, or choice with their respect to their medical condition.
Denies their right to request MiD, a request whivh may be critical to their dignity andf autonomy

Security of the Person

Law leaves individuals denied access to these choices to endure intolerable suffering, both
physical and psychological

Principles of Fundamental Justice:

What’ the objective of the prohibition
Court concludes the object is to protect vulnerable persons to induce suicide at a moment of
weakness. The purpose of the law should be applied more broadly. But the court says the
purpose is applied too broadly

Arbitrariness
Court says no.

29
Overbreadth
Does the law go too far by denying the rights of some individuals in a manner that bears no
relation to its object?

Gross disproportionality – Unnecessary to decide

Laws which violate s 7 will be difficult to justify. The individual rights protected by s7 are not
easily overridden by competing social interests.

Courts should show deference, however the absolute prohibition id not minimally impairing, it is
a blanket prohibition on assisted suicide, which means it is not a minimally invasive intervention.
Apparently risks can be managed by created a complicated regulatory regime to protect
competence, informed consent, mental illness, abuse, the limits created by the system. Looks at
other systems which created a regime which minimizes the risk while allowing MAiD

The finding in Carter suspended declaration of invalidity – they wanted to re-legislate the area.
(look at the 2016 amendment > does it violate the Charter values? If so, is it justified by section
1?)

What part of the new legislation violates section 7 of the Charter?

What do you have to be clear about before you answer the question of whether a legislation
violates section 7?
 Decide what the court decided in Carter, because that helps you assess whether the legislation is
consistent.
 First step, determine if there is a violation of one of the protected rights?
 “(d) their natural death has become reasonably foreseeable” creates an additional barrier, for
example for people with dementia or early onset Alzheimer’s. “advanced consent” – can you
consent in advance? Nothing in Carter brings this up. [it’s a policy question, not a legal question,
so the SCC is not able to address the issue on this level, only that you must be competent at time
of consenting to MAiD.]
 The language of the legislation may be too vague… for example “external pressures” are not
listed or made clear.

What’s the significance of the preamble for section 1?

[When thinking about, can the section 7 violation be justified?]
 Sets the table for when there may be a section 1 issue.
 Section 1 analysis – does the preamble help understand the goal of the legislation, creating a
stronger and more clear justification.
 How much evidence do they have to have to be validly limiting the criteria for allowing someone
to partake in MAiD?

30
Deference to the legislature; what level is required when the govt hasn’t shown evidence of the
balance of competing interests, who gets to decide and do the fine tuning? Government, or
Courts, since they have already addressed it in Carter.
 “reasonably foreseeable death” death Truchon v Canada (2019) is inconsistent with the result in
Carter. The govt may have overstepped their limits.
 So, govt enacts Bill C-7 which repeals the “reasonably foreseeable death” requirement.
 Also, included a section for mental illness. It doesn’t qualify under the criteria for MAiD
 But, what about advanced requests, mature minors and requests where mental illness is the
underlying condition.

Section 241.2 – MAiD Legislation

An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)
S.C. 2016, c. 3
Preamble (Excerpts)

Whereas the Parliament of Canada recognizes the autonomy of persons who have a grievous and irremediable
medical condition that causes them enduring and intolerable suffering and who wish to seek medical assistance in
dying;

Whereas robust safeguards, reflecting the irrevocable nature of ending a life, are essential to prevent errors and
abuse in the provision of medical assistance in dying;

Whereas it is important to affirm the inherent and equal value of every person’s life and to avoid encouraging
negative perceptions of the quality of life of persons who are elderly, ill or disabled;

Whereas vulnerable persons must be protected from being induced, in moments of weakness, to end their lives;

Whereas suicide is a significant public health issue that can have lasting and harmful effects on individuals, families
and communities;

Whereas, in light of the above considerations, permitting access to medical assistance in dying for competent adults
whose deaths are reasonably foreseeable strikes the most appropriate balance between the autonomy of persons who
seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and
those of society, on the other;

Eligibility for medical assistance in dying

 241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:

o (a) they are eligible — or, but for any applicable minimum period of residence or waiting period,
would be eligible — for health services funded by a government in Canada;

o (b) they are at least 18 years of age and capable of making decisions with respect to their health;

o (c) they have a grievous and irremediable medical condition;

o (d) they have made a voluntary request for medical assistance in dying that, in particular, was not
made as a result of external pressure; and

o (e) they give informed consent to receive medical assistance in dying after having been informed
of the means that are available to relieve their suffering, including palliative care.

 Grievous and irremediable medical condition

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(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:
o (a) they have a serious and incurable illness, disease or disability;

o (b) they are in an advanced state of irreversible decline in capability;

o (c) that illness, disease or disability or that state of decline causes them enduring physical or
psychological suffering that is intolerable to them and that cannot be relieved under conditions that
they consider acceptable; and

o (d) their natural death has become reasonably foreseeable, taking into account all of their medical
circumstances, without a prognosis necessarily having been made as to the specific length of time
that they have remaining.

Proposed MAiD Amendment

241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria:
o (a) they are eligible — or, but for any applicable minimum period of residence or waiting period,
would be eligible — for health services funded by a government in Canada;

o (b) they are at least 18 years of age and capable of making decisions with respect to their health;

o (c) they have a grievous and irremediable medical condition;

o (d) they have made a voluntary request for medical assistance in dying that, in particular, was not
made as a result of external pressure; and

o (e) they give informed consent to receive medical assistance in dying after having been informed
of the means that are available to relieve their suffering, including palliative care.

 Grievous and irremediable medical condition

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:
o (a) they have a serious and incurable illness, disease or disability;

o (b) they are in an advanced state of irreversible decline in capability and;

o (c) that illness, disease or disability or that state of decline causes them enduring physical or
psychological suffering that is intolerable to them and that cannot be relieved under conditions that
they consider acceptable.

Exclusion
(2.1) For the purposes of paragraph (2)(a), a mental illness is not considered to be an illness, disease or disability

https://www.justice.gc.ca/eng/cj-jp/ad-am/wwh-cqnae/access/index.html

Government engaged in a deep conversation and analyzed the public perception; complicated issue 
DEFERENCE SHOULD BE AFFORDED

 Since MAID became law, there have been four court challenges in Canada. In British Columbia there was
the Lamb case. In Quebec, there was the Truchon case. Both of these cases challenged the MAID law
based on the eligibility conditions. The eligibility conditions are the rules around who is allowed to get
MAID. The persons who brought the case to the court said the MAID law went against the Canadian
Charter of Rights and Freedoms because it was too limiting.
 Truchon: This case was brought by two people living with disabilities. One was Mr. Truchon. He
has lived with cerebral palsy since he was born. The other was Ms. Gladu. She lives with

32
 paralysis and severe scoliosis caused by poliomyelitis. The practitioners who assessed them said
they met all the conditions for MAID except for one: they were not expected to die.
 The court found that a condition in the Criminal Code was against the Charter and so was
invalid. Quebec also has a provincial law on MAID. The court also found the same thing for a
similar condition in Quebec’s provincial law on medical assistance in dying. It was also against
the Charter. Both the conditions are about the fact that the person is expected to die.

In Ontario, there was the Foley case. In Saskatchewan, there was the Katzenback case. Both
these cases also said the MAID law went against the Charter. But they said that the safeguards
were not enough to protect people. They said people might be offered MAID instead of getting
enough support services or other ways to reduce their suffering.

Some noted that if the term ‘reasonably foreseeable natural death’ was removed it could make other
parts of the law more important. For example, the condition that the person must be in an ‘advanced
state of irreversible decline’ in their capacity would be more important.

Bill C-7
Preamble (Excerpts)
Whereas the Parliament of Canada recognizes the autonomy of persons who have a grievous and irremediable
medical condition that causes them enduring and intolerable suffering and who wish to seek medical assistance in
dying;
Whereas robust safeguards, reflecting the irrevocable nature of ending a life, are essential to prevent errors and
abuse in the provision of medical assistance in dying;
Whereas it is important to affirm the inherent and equal value of every person’s life and to avoid encouraging
negative perceptions of the quality of life of persons who are elderly, ill or disabled;
Whereas vulnerable persons must be protected from being induced, in moments of weakness, to end their lives;
Whereas suicide is a significant public health issue that can have lasting and harmful effects on individuals, families
and communities;
Whereas, in light of the above considerations, permitting access to medical assistance in dying for competent adults
whose deaths are reasonably foreseeable strikes the most appropriate balance between the autonomy of persons who
seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and
those of society, on the other;
Whereas the Government of Canada recognizes that in the living conditions of Canadians, there are diverse
circumstances and that different groups have unique needs, and it commits to working with provinces, territories and
civil society to facilitate access to palliative and end-of-life care, care and services for individuals living with
Alzheimer’s and dementia, appropriate mental health supports and services and culturally and spiritually appropriate
end-of-life care for Indigenous patients;
And whereas the Government of Canada has committed to develop non-legislative measures that would support the
improvement of a full range of options for end-of-life care, respect the personal convictions of health care providers
and explore other situations — each having unique implications — in which a person may seek access to medical
assistance in dying, namely situations giving rise to requests by mature minors, advance requests and requests where
mental illness is the sole underlying medical condition;
Note:
The MAiD legislation is once again being amended. This amendment is in response to the
Quebec Superior Court decision in Truchon v Canada (2019).
The proposed amendment (Bill C-7) would amend the Criminal Code to permit MAID for
individuals whose natural death is not reasonably foreseeable. The Bill would continue to
prohibit MAID for individuals whose sole underlying medical condition is a mental illness. The
Bill makes consequential changes to the safeguards which exist in the administrative scheme.

33
If you are interested in learning more about this Bill a good place to start is on-
line https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=10875380&View=0

Section 7 and Social Citizenship

pp.1247 – 1276

Gosselin v Quebec (Attorney General) 2002 SCC 84

Access to other interests relating to the life, liberty and security of the person.
" The interests being protected here relate to social citizenship, like welfare, minimum adequacy of
food, education and healthcare.
" Cases about “positive rights” which are asking the state to intervene, positive action (Gosselin).

How far does s7 reach?

" Court goes far and says it reaches into the criminal code – but does it extend into public policy
around access to healthcare in a non-criminal law context (as opposed to Morgentaler)?

Gosselin v Canada (Attorney General)

" Social assistance scheme in Quebec which drew a line between young/old people (under 30).
" Only entitled people under 30 to 1/3 the amount of social assistance available per person.
" Govt offered programs for work and training, if you partook, you would be entitled to the full
amount of social benefit.

Facts:
 Same era as omnibus opt out legislation (s33, case Ford v Quebec)
 Opt-out clause became inoperative in 1987, legislation was re-enacted in 1989.
 Actual remedy being sought was for the govt of Quebec to reimburse everyone who was affected
by the legislation causing them to receive the lower amount of social assistance.
 $400 million to remedy that distinction.
 Base level available to all people was intended to provide the recipient for funds for the absolute
bare necessities for survival (one third of base amount was $170/month).
 Why would a government do that?
o May have been trying to incentivize young people to work, take risks, get training or
education.
o Encouraging them with punitive measures to get back into the workforce.
o Could be an assumption built in that people under 30 are likely able to move in with their
parents.
o Assumption/stereotype of young people just being lazy, taking advantage of the social
benefits.

34
What happens in the case:
 Made the argument (unsuccessfully)that drawing the line at 30 was a discriminatory decision

Issue:
You can’t deny adequate social assistance to people who are impoverished – raises s7 questions
about positive rights.

MacLachlin C.J. (Majority):

 In this analysis we also need to ask whether giving not enough constitutes a deprivation
 The factual record is insufficient to support this claim
 Section 7 deals with the administration of justice, this case is about social welfare
 Section 7 sits at the front end of a bunch of criminal provisions, we would be recognizing rights
that are not implicated
 Nothing in the jurisprudence suggests that section 7 places a positive obligation on the state BUT
not prepared to decide the issue forever (leaving the door open)

 At the time, s7 should only apply to state proceedings and administrative structures.
 MacLachlin says, in this case it’s a social policy decision of the govt to distribute limited
resources.
 The problem with recognizing a claim like this extends to include economic rights which raises
issues of competency and justiciable expertise.
 Says no, not enough evidence to link the state’s decision of limiting social benefit to having an
economic right.
 Page 81/82/83 (or paragraph, check)
 Reading s7 to be able to include positive rights is an extreme stance for a court to take. (and have
not done so until this day)

Arbour J. (dissenting):
 This is not a property rights case, this is a claim about being able to survive (liberty and security
of the person)
 Responding to the argument that section 7 is only a negative right:
 This case is different because the government is acting and then backing off
 There is also the issue that the Charter creates many rights that require positive obligations
 Nothing in the language suggests section 7 is limited to negative rights
 The Court should be cautious about interfering
 In this case though the gov has already entered the field and has made a determination of what
adequate social assistance is

 Challenges the idea that Charter is not intended to uphold positive rights as well?
 What is the difference? Is it a real difference?
 The first claim made was that s7 was intended by the drafters not to include property (economic)
rights.
o But, the reason not to protect property relates to ownership and control, but this is about
the right to survive. Not actually a property right, a subsistence right.
 Second argument is that at heart Charter should only protect negative rights.

35
 o She says, what about the right to vote. It’s not a right of keeping the govt out of the
system, but expend resources in order to deliver services. Minority language rights
imposes an obligation on the state to impose those rights.
o So saying the Charter does not protect positive rights is not accurate.

Can the State be accountable for this?

 How to approach this question then?
o deals with underinclusive legislation
o Page 1250 case Dunmore applies a test:
1) is there a violation of the rights?
2) Is there enough evidence? She says yes! [para 377]
3) Can we hold the state accountable? Is there enough of a connection between what
the state did and what the litigants are asking? Who caused this harm? Says that we need
to use a different frame when talking about this kind of a rights claim [para 380] of
whether the state is under an obligation of performance to alleviate the claimant’s
position?
Para 381:”Iin conceiving of state accountability in terms of a positive breach of
performance, it becomes possible to see how a violation …
" Other larger questions relate to poverty in Canadian society, and continuing existence of inequity
and discrimination. (Neoliberalism) IS poverty something the charter has the capacity to respond
to? Can the charter respond to these kinds of rights-based decisions.
" Courts are reluctant to get involved in distribution of scarce resources. Primarily because poverty
is complicated and deeply engrained in our social structure, and the remedies are large. It makes
the court also more obviously against the legislature.
" It marginalizes claims related to poverty though, which is an enormous problem and requires a
serious response. It tells people who are poor that their problems are not important to the charter.
" Ignores a state of serious disadvantage and is in opposition with many of Canada’s human rights
promises. Policy issue where the language of rights is not efficient to solving the problem.

Chaoulli v Quebec (Attorney General) 2005 SCC 35

Chaoulli v Quebec (Attorney General)

Who are on the judges minds when thinking about who the case is benefitting?
Who are the stakeholders?
Majority, the individual
Minority, the disadvantaged and underserved.
Who benefits from having access to private health insurance? Who suffers?
How do we decide who it is that determines who they should be?
Who should solve this problem? (is the court the best institution to answer this question?)
What analytical frames should be used in understanding the problem, and solving the problem?
What the impact of reasoning throught a problem like this thorugh the court system and use of rights is…
Analyzing problems in rights violations tends to structure a problem in a certain way, but that’s not always
the best/ most efficient way.

What did the SCC decide:

(Limited precedential value. Limited principles taken out for future use)

36
Facts:
 Mr. Zeliottis wants to jump the waiting list and is willing to pay for private health care.

Issue:
 Opening up the health care system to privatization would dimmish the quality of the public
system.
 Underlying problem with the health care system – waiting time to get health care, and the delay
in accessing health care services.
 How do you solve it? The govt has decided to ration the resources of health care by implementing
waiting lists.
 Who should solve the problem?
 Should courts interfere with governments approach to managing the health care system?

Underlying Concerns:
 What is the risk to the system of allowing private insurance for services that are available
in the public system?
 When should the court stop the government from making decisions about private
insurance as a matter of public health?
○ Very complicated question
 Who are the stakeholders? How does each judgement consider the different stakeholders?
 Key difference between Chaoulli and Gosselin?
○ Court is being asked to do different things - striking down a restriction on private
insurance is much easier than paying $400 million

Finding:
Binnie + Lebel and Fish JJs (Dissenting):
 It’s not a constitutional law problem, it’s a complicated social issue.
 This is not a constitutional problem (not for judges to decide)
 Asking what is reasonable health care and we should assess it is too vague a question for the
Court
 Legislative policy is not arbitrary just because we disagree with it
 We should not be asking if this is the right policy, but was it reasonable for the government to
think it was the correct policy

 Not a debate that should be solved by judges.

 No violation on s.7 of Charter.
 Not our job to make decisions about the health care system.
 Our job is to decide whether the govt made the right decision.
 Decisions about providing care are based on need, not on money.
 Not arbitrary [see handout]

MacLachlin + 3 others (and Deschamps concurring > Majority):

 Somebody’s section 7 rights are being infringed so this is a legal problem
 This is not about a right to health care
 The fact that the matter is complex, complicated, and policy does not mean the Court can abdicate
its responsibility

37
 Step 1
 Serious security of the person deprivation because there is a psychological stress with being
on a waiting list
○ Also long wait times could implicate physical security and life
Step 2
 Focus on arbitrariness - is there a connection between the purpose (maintaining high quality
health care system) and the means (denying private health care)
○ Not clear that public health system would be threatened so this is arbitrary

 Agrees with Deschamps that there is a violation of the QC charter.

 Of course it’s a constitutional problem, the case came to us, and so even though it’s a
complicated issue, that doesn’t mean we can’t attempt to come up with a solution.
 First step of section 7: Attempting to limit the scope of interference with the security of the
person.
 The effect on the security of the person is that when the health care system fails to deliver a
reasonable quality of, or access to, health care is a violation of security of the person.
 Second Step: It is arbitrary, not consistent with the POFJ (although still not at Carter and Bedford
understanding of analysis of POFJ) [see handout, #3]
 Access to a waiting list does not equal access to health care. [see handout, Brightspace]
 Yes we do need to intervene, the waiting lists are preventing access in an unreasonable way. The
lists are too long, it’s reasonable that someone would want to access health care.
 Speaks about the very rich being able to access private health care.
 But the less advantaged can’t buy private insurance – which she finds problematic.

Deschamps:
 Based only on QC Charter…
 Mental health support available quickly, only really available to those who can afford. We
already have private health care in our system to some services.
 Violates QC provision, and is not justified under section 9.1 (section 1 equivalent)
 Agrees with McLachlin – but from QC perspective.

Reasoning:
Chaoulli and Gosselin go together… welfare and social assistance, and health care. Do the two
decisions make sense that the court was prepared to enter into the health care field and strike
down legislation, but not for social welfare…
Because of the nature of the remedy – which is the difference between a positive right and a
negative right. And Chaoulli constructs as a negative rights case… The court is being asked to
strike down the prohibition that prevents MR. Zeliottis from purchasing private care.

Cambie Surgeries BCCA…

Similar issues as Chaoulli.

38
Cambie Surgeries (Lorian Hardcastle)
[see document text]

Section 15 – Equality Rights

Provision:
15. (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.
(2) Section (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.
Equality before and under law and equal protection of the equal benefit of law.
15. (1)

 Intended to include a broad assessment of equality, not to nitpick between different

articulations of what is being protected.
 It guarantees those rights “without discrimination” – a definition which has become
important in the jurisprudence.
 Goes on to point out basic groups that should not be discriminated against.
 Analogous grounds, not an exhaustive list.

Also see Equality in:

• 27. This Charter shall be interpreted in a manner consistent with the preservation and
enhancement of the multicultural heritage of Canadians.
• 28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it
are guaranteed equally to male and female persons.

Affirmative action programs

15. (2)
Recognizes that amelioration of disadvantage is integral to inequality. We shouldn’t understand equality
as being violated by programs that pay attention to disadvantaged groups.
[ see ss 27, 28 of Charter on specific equality guarantees ]

What kind of differentiations violate Charter values?

Ex – differentiation based on age is generally considered quite reasonable.
Forces you to unpack what seems obvious and inevitable, and realize what is actually based on
your own interpretations and positions of privilege.

Introduction and Early Application

Equality Rights – pp.1279 – 1286

Early Interpretation and Application of Section 15: The Andrews Tests

39
  Implementation of s 15 delayed until three years after the rest of the Charter came into force
 Not until 1989 that SCC heard first case applying equality guarantees
 Andrews v Law Society of British Columbia, 1989 1 SCR 143 first case that set out contours of
SCC’s approach to s 15 in a 3 part-test requiring:
o Differential treatment
o On the basis of an expressly prohibited ground or one analogous thereto
o That is discriminatory because it imposes a burden or denies a benefit
 Word “in particular” in s 15(1) indicate that list of prohibited grounds of discrimination is not
exhaustive
 Court recognized citizenship as analogous ground in Andrew and extended constitutional
protection against discrimination to non-citizens like Mr. Andreas
 When courts recognize a new group, they encourage legal mobilization & initiate potentially
profound legal changes the drafter of the Charter might not have contemplated
 10 years after Andrews, SCC reformulated the test

Andrews v Law Society of British Columbia (1989) 1 SCR 143

pp 1279-1286
Problems Before Andrews:
 What did the phrase “without discrimination” mean?
 How did the court interpret what counted as discriminatory?
 What was the meaning and importance of those opening phrases of s15?
 What was the purpose of protecting equality?

ANDREWS TEST
 The Andrews TEST
1) Differential treatment
Is there a denial of one of the equality rights? Is there differential treatment or
does the law draw a distinction?
 [ the words “in particular” in s15(1) indicate that the list of prohibited
grounds is not exhaustive and could be based on analogous grounds
based on person characteristics]
2) on the basis of an expressly prohibited ground or one analogous thereto
Is it based on an enumerated or analogous ground?
3) that is discriminatory because it imposes a burden or denies a benefit.
Is it discriminatory?

Facts:
• Andrews, a British subject permanently resident in Canada.
• Cannot apply to the BC law society on the basis of his citizenship.

Issue:
 “Does the citizenship requirement for entry into the legal profession contained in s.42 of the
Barristers and Solicitors Act, RSBC 1979, c.26, contravene s.15(1) of the Canadian Charter of
Rights and Freedoms?”

 Is there a denial of one of the equality rights? Is there differential treatment or does the
law draw a distinction?
 Is it based on an enumerated or analogous ground?

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  Is it discriminatory because of an imposed burden or benefit?
o A distinction which has the effect of imposing burdens, obligations, or
disadvantages on such individual or group not imposed on others, or which
withholds or limits access to opportunities benefits and advantages available to
other members of society
 Has to be an assessment of the reasonableness or fairness within s. 15
o Don’t want to trivialize a s. 15 claim

Finding/Holding:
Macintyre (in majority, but also in dissent)
S1 > perfectly reasonable to have a citizenship requirement for lawyers. (but rest of court says no, its not
a reasonable requirement)
On equality > [see handout]
1) Requires comparison in the relevant social, political, cultural context. Which requires the decision
maker to question their own biases and assumptions. Ex – pregnancy is seen as a difference when
it requires accommodation from the male perspective, but for females, it might be seen
differently.
2) Identical treatment does not guarantee equality, sometimes different treatment is required to
remedy inequality.
3) The analysis is focussed on impact and effects, not intention. (ex – see criminal laws on
sentencing)
4) The “similarly situated” test is rejected. Section 15 protects “substantive equality.” Meaning, you
need to consider the content of the law, the purpose, and the impact of who it affects.
5) The essence of equality is the accommodation of difference.
6) Section 15 has a remedial and ameliorative purpose. Inequality is an issue in Canada, so there is a
need for this kind of legislation.

An attempt to define discrimination >

 A distinction, whether intentional or not but based on grounds relating to personal characteristic
of the individual group which has the effect of imposing burdens, obligations, or disadvantages
on such individual or group not imposed upon others… [ see handout]

Reasoning:
" First of all, it differentiates between citizens and non-citizens.
" Not an enumerated group, but analogous – a discreet and insular minority who lack political
power and are vulnerable/disadvantaged. (Immutable characteristics, cannot be changed without
considerable personal cost)
" “The distinction imposes a burden or disadvantage on this group based on their identity.

So, he found there is a violation of s15. But no s1 justification.

Rule/Factors:

Class Comments:
 Importance of the decision is about what the court says about s15, not about Mr. Andrews
specific problem.
 The court accomplished so much in explaining how a s15 analysis would be approached.

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The Concept of Equality
Section 15(1) is primarily concerned with the application of the law. It is not a “general
guarantee” It does not apply to private citizens, groups or between private citizens.

 It is a differential, comparative term – not every differential treatment will result in equality, and
identical treatment may also produce serious inequality.
 The aim then, is equality of benefit and protection, without additional penalties, burdens or
restrictions imposed on one more than another.
 For the accommodation of differences, it will frequently be necessary to make distinctions.
 Virtually all govt legislation differentiates between people. The issue is when to decide that the
differentiating is to create equality and same results, and when the differentiating is causing a
lack of equality.

Discrimination
• a distinction, whether intentional or not but 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. Distinctions based on personal characteristics
attributed to an individual solely on the basis of association with a group will rarely
escape the charge of discrimination, while those based on an individual’s merits and
capabilities will rarely be so classified.

Differential Treatment
pp. 1326 – 1332
Eldridge v British Columbia (Attorney General), (1997) 3 SCR 634
Facts:
• The appellants were Deaf persons who wished to have the use of American Sign Language (ASL)
interpreters with their doctors in hospitals covered by their health insurance.
• Woman gives birth to twins.
• Needed emergency care, where whipped away from the mother.
• She had no idea what was happening, so it was traumatizing
• The appellants claim that because of the communication barrier that exists between them and
their doctors, they are receiving care of a lesser quality, and that this infringes on their right to
equal benefit of the law without discrimination based on physical disability under s.15(1) of
the Charter.

Issue:
 Whether the failure by a hospital to fund a sign-language interpreter violates s15.
 The impact on an individual who is deaf has no way to communicate with the service provider
unless they have their own interpreter.
 On the face there does not seem to be any discrimination, but when you look at other groups, it
does.
 Does the failure to provide sign language interpreters as an insured benefit under the Medical and
Health Care Services Act violate s.15(1) of the Charter?

42
  Is it the relevant statutes themselves that are violating the Charter, or the actions of the hospitals
that were relegated to them by the legislature?
 What is the purpose of s.15?
 What is the test to see if s.15 "discrimination" has occurred?

Finding/Holding:
Section 15 violation without justification under section 1.
The appellants were unsuccessful at the lower courts. But, Appeal allowed.

Reasoning:
" Related to human dignity.
" “For example, people with disabilities, access to things, and barriers that surround them all the
time which reveal unexamined assumptions about what is “normal” and what is not.”
" “Do the structures and assumptions of society, that are often unseen, relegate people with
disabilities to the margins, and the inability to participate. Statistics point to this.”
" The fact that the law is neutral is not the end of the answer. Is the law discriminatory to those
with disabilities if it prevents them from accessing equal health care?

The court states that there are two main purposes of s.15:
" protecting human dignity, and
" expressing a desire to rectify discrimination against disadvantaged
groups.

Rule:
Once the govt provides a benefit, they are required to do so unequivocally across the board –
which may be an affirmative rights issue.
 If there are policy concerns around that, they are to be dealt with in s1.
La Forest then lays out the uniform s.15 test:
1. there must be a distinction between others;
2. the distinction has to be one that imposes burdens or withholds benefits;
3. one must show that this discrimination is based on an enumerated or analogous ground.
 He goes on to say that there are two main ways to discriminate: assuming things about people that
are stereotypical, or failing to take into account how the characteristics of a person change the
way that a law affects them. Both of these fall under the definition in s.15.

Comments:
High water mark case for the court’s willingness to identify adverse discrimination.

The Kapp Test

pp.1305 – 1308 and 1360 – 1367
R v Kapp, 2008 SCC 41
***Focuses on the second branch of the equality test***
Facts:
 Appellants commercial fishers, mainly non-aboriginal
 Asserted that equality rights under s 15 violated by communal fishing license granting members
of three aboriginal bands the exclusive right to fish for salmon in the mouth of the Fraser River
for a period of 24 hours on August 19-20, 1998

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  Non-aboriginal fishers charged with fishing at a prohibited time → claimed Aboriginal Fisheries
Strategy was unconstitutional
Issue:
Whether s 15(2) is capable of operating independently of s 15(1) to protect ameliorative programs from
claims of discrimination.
Holding:
Gov’t imposed differential treatment on the basis of race, but the gov’t established that it qualified as an
ameliorative law program or activity within the meaning of s 15(2). Therefore communal fishing license
not discriminatory.

Ratio:
Where a program makes a distinction on one of the grounds enumerated under s 15 or an analogous
ground but has as its object the amelioration of the conditions of a disadvantaged group, s 15’s guarantee
of substantive equality is furthered and the claim of discrimination must fail.

Kapp TEST
https://en.wikipedia.org/wiki/R_v_Kapp
https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art15.html

1. You always have to assess the impact on dignity

2. Contextual factors (the court identified 4 with sub-categories etc)

It’s harder for a rights claimant to argue ss 7 or 15. More that you have to do to prove the
violation. A bigger burden.

Claimants don’t get off ss 7 or 15 as easily, so govt has to do less work in defending rights
violations. Especially important in the context of equality legislation – which, by definition is
coming from disadvantaged community. A catch-22, because the ones who are the least able to
come up with the resources to prove a bigger burden are required to prove a bigger burden.

Key Points from Andrews:

1. Equality requires a comparative analysis made in the relevant social, political, cultural context.
2. Identical treatment does not guarantee equality, sometimes different treatment is required to
remedy inequality.
3. The analysis is focussed on impact and effects, not intention.
4. The “similarly situated “ test is rejected. Section 15 protects “substantive equality.”
5. The essence of equality is the accommodation of difference.
6. Section 15 has a remedial and ameliorative purpose.

Decision in Kapp:

Evolved/Restated test in Kapp (from Andrews test)

Section 15(1)
 Andrews is still the template
 Commitment is to substantive equality – “enriched but never abandoned”
 15(1) and (2) work together to promote substantive equality

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  15(1) prevents discriminatory distinctions that have an adverse impact on identified (or
analogous) groups.
 A discriminatory distinction is one that perpetuates prejudice or stereotyping

Section 15(1) and Section 15 (2)

• Covers the analysis in both s. 15(1) and s. 15(2) – combines into one test
• 1. Does the law, program or activity make a distinction on an enumerated or analogous
ground (burden on claimant)
• 2. Is the impugned law, program or activity ameliorative (under 15(2)) and thus
constitutional. (burden on government)
• a. Does the program have as its object an ameliorative or remedial purpose?
• b. Does the program target a disadvantaged group identified by the enumerated or
analogous grounds?
• 3. If the government fails to argue 15(2) or fails to demonstrate that its program is
ameliorative, then analysis shifts back to discrimination analysis under 15(1).
• Does the distinction create a disadvantage by perpetuating prejudice or by
stereotyping?

Affirmative action programs

Section 15 (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. [allows the govt to prove that a program is intended to be
ameliorative when it might appear discriminatory on the surface. It can be seen as a legitimate
approach to addressing discrimination.]

1. Does the law, program or activity make a distinction on an enumerated or analogous ground
(burden on claimant)? [ in Kapp, the court says YES to the this question ]

2. Is the impugned law, program or activity ameliorative (under 15(2)) and thus constitutional.
(burden on government) > if it fits into section 15(2), it kind of guarantees it’s not discriminatory.

[ Is it an affirmative action program? The court says that the govt is pursuing the goal of band
self-sufficiency, which is an ameliorative program. It is intended to be ameliorative to
disadvantaged groups. No need to go on to the next question. Proving that the program is
ameliorative is very difficult, so they don’t require the govt to prove the program is working, so
they look at the purpose more so than the effect, because it’s too soon to know if it will work. ]

a. Does the program have as its object an ameliorative or remedial purpose?

b. Does the program target a disadvantaged group identified by the enumerated or analogous
grounds?
 Fine-tuning the 15(2) analysis:
o Court should look to the govt’s purpose in creating the program, and not the
effects. This is intended to encourage innovative attempts to ameliorate

45
 disadvantage, and aknowledge the reality that it is not always easy to
ascertain the effect of an ameliorative program at the early stages. What is
government’s
o What does ameliorate mean? Laws which restrict or punish behaviour are not
ameliorative. (para 49)
o The program must be specifically targeted at disadvantage- at vulnerability,
prejudice and negative social characterization. Broad social programs do not
qualify (e.g. Social assistance)

3. If the government fails to argue 15(2) or fails to demonstrate that its program is ameliorative ,
then analysis shifts back to discrimination analysis under s 15(1).
Does the distinction create a disadvantage by perpetuating prejudice or by stereotyping?
(burden on the claimant)

Applying Kapp
pp. 1309 – 1323
Quebec and A
Quebec (Attorney General) v A, 2013 SCC
p1309 – 1323

Facts:
 Eric, a wealthy business man, and Lola, a Brazilian model, lived together in a cohabiting
relationship for seven years and had three children.
 Although Lola wanted to get married, Eric maintained that he did not believe in the institution of
marriage.
 When they separated, pursuant to a contract, Lola remained in the family home with her children
while Eric provided substantial child support.
 Lola did not have access to any of the spousal support entitlements or property sharing
entitlements that were available to married or civil union spouses upon separation.
 Lola challenged these provisions (specifically articles 401-430, 432, 433, 448-484, and 585) as
violations of the equality guarantee under section 15 of theCharter.
 In so doing, she sought to extend the legal regime applying to married and civil union spouses to
cohabiting couples.

The Supreme Court of Canada rendered a split decision.

On the issue of section 15(1) the Court produced a 5-4 majority finding that the provisions
violated section 15(1).
 Chief Justice McLachlin and Justices Abella, Deschamps, Karakatsanis, and
Cromwell formed the majority while Justices Lebel, Rothstein, Fish and Moldaver
formed the dissent. On the issue of section 1, the Court was slightly more divided.
 Justices Lebel, Rothstein, Fish, and Moldaver declined to consider section 1 having
found that the provisions were constitutional because they did not violate section
15(1).

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  Justice Abella found that none of the provisions were justified under section 1. By
contrast, Justice McLachlin found that all of the provisions were justified under
section 1.
 Finally, Justices Deschamps, Karakatsanis, and Cromwell found that all of the
provisions except article 585 (spousal support entitlements) were constitutional.

Reasoning (Abella J. > Majority):

Justice Abella went on to state that the focus on “choice” should not have been relevant at the
section 15(1) stage. Claimants are not required to prove that they could have avoided
discrimination to establish that their equality rights have been violated. Choice, therefore, is
irrelevant to a finding of discrimination and should instead come up at section 1 within the
context of justifying the legislation. Justice Abella’s conclusion on section 15(1) is succinct and
articulate:
“…that [the exclusion from the legislative regime] imposes a disadvantage is clear, in my view:
the law excludes economically vulnerable and dependent de facto spouses from protections
considered so fundamental to the welfare of vulnerable married or civil union spouses that one of
those protections is presumptive, and the rest are of public order, explicitly overriding the
couple’s freedom of contract or choice. The disadvantage this exclusion perpetuates is a historic
one: it continues to deprive de facto spouses access to economic remedies they have always been
deprive of, remedies the National Assembly considered indispensable for the protection of
married and civil union spouses” (paragraph 349).

The constitutionality of treating common law couples as de facto married.

Division of matrimonial property.

In this case, the male had enormous wealth. Only way this litigation could have been funded all
the way up to the SCC.

Is this distinction unconstitutional?

Does it violate section 15?
Can it be justified under section 1.

Individuals should be able to choose whether or not to enter into a relationship into a civil
relationship or religious authority, to give people the right to Not be involved in a relationship
that has economic implications on breakdown.
The sense that you have to leave some room for people’s autonomy or individual choice in a
marriage regime to not be in a property context.
Marriage is immutable and historically disadvantaged some people.
The question was whether this was discriminatory? QC said it was to give people the choice, and
exercise their own power, and separate their lives from the power of the church.

What’s Important?
[ no claim of an ameliorative program, straight 15(1) case ]

Evolving approach to section 15

In the end, the legislation was upheld. (5 judges found it was constitutional – 4 no
discrimination, one said yes discrimination, but justified under s1)

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First part of Section 15 analysis: All 9 judges held that the imposed differential treatment based
on marital status (analogous ground)

Five judges found that this differential treatment was discriminatory.

Abella J (McLachlin CJC, Deschamps, Karakatsanis, Cromwell JJs concurring)

In her majority judgment on discrimination J Abella moves away from (or fine-tunes) the rest
from Kapp. How?
 The disadvantaged group who was made economically marginalized, vulnerable. Even though
things have gotten better, it is not completely gone.
 Test is flexible and contextual
 Can’t be rigid, because it’s not an effective way of understanding equality or discrimination
 A discriminatory distinction has the effect of perpetuating “arbitrary “disadvantage – which adds
an additional layer to the s15 analysis. You need to know what the intention was intending to
accomplish, so the purpose in drawing the distinction. (is it justified, rational?) Which also makes
the burden on the DF (govt) more difficult.
 Finds it important to link the s15 test to who is historically disadvantaged in our society.
 A

R v Fraser, 2020
Fraser v Canada (Attorney General), 2020 SCC

http://www.thecourt.ca/fraser-v-canada-paving-the-road-towards-gender-equality/
https://www.scc-csc.ca/case-dossier/cb/2020/38505-eng.aspx

Facts:
The Pension Plan
 The buy-back plan looked neutral on its face, but when you look at who it affects, its mostly all
women, and mostly for child caring responsibilities. So it disproportionately affected women,
who are socially expected to take on the role of caregiver and spend their time on childcare over
working.
 Greater benefits are provided to members with a record of high pay and long, uninterrupted full-time service
 Certain gaps in a member’s record of service — such as being suspended or time spent on unpaid leave — can
be filled in through a “buy back” process, leaving the member’s pension benefits unaffected
 No such choice is available to full-time members who temporarily reduced their working hours under a job-
sharing agreement.
 Nearly all of the participants in the job-sharing program are women and most of them reduced their hours of
work because of childcare
 Three retired members of the RCMP claim that the pension consequences of job-sharing have a discriminatory
impact on women and violate s. 15(1) of the Canadian Charter of Rights and Freedoms
 Key issue: The RCMP’s Acting Commissioner did not follow the External Review Committee’s
recommendations and dismissed the grievances

Holding:

48
Full-time RCMP members who job share must sacrifice pension benefits because of a temporary
reduction in working hours. This arrangement has a disproportionate impact on women and
perpetuates their historical disadvantage. It is a clear violation of their right to equality under s.
15(1) of the Charter.

He found that it was not legally possible for job-sharing to be defined as a combination of
full-time work and leave without pay. Although “immensely sympathetic” to the grievances, he
concluded that the classification of job-sharing as part-time work was not discriminatory

Ratio:
To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law
or state action:
1. on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
2. imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or
exacerbating disadvantage

Section 15 has an actual ameliorative purpose, intended to solve problems of discrimination

The Test:\To prove a prima facie violation s.15(1), a claimant must demonstrate that the
impugned law or state action:
 On its face or in its impact, creates a distinction based on enumerated…
 [handout] …

Analysis:
The Test
To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law
or state action:
3. on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
4. imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or
exacerbating disadvantage
Step 1: Does the law create a distinction based on enumerated or analogous grounds?
 This is a claim of adverse impact – that the negative pension consequences have an adverse
impact on women with children.
What is adverse impact discrimination?
 Adverse impact discrimination occurs when a seemingly neutral law has a disproportionate
impact on members of groups protected on the basis of an enumerated or analogous ground….
Instead of explicitly singling out those who are in the protected groups for differential treatment,
the law indirectly places them at a disadvantage. It marks a shift away from a fault-based
conception of discrimination towards an effects-based model which critically examines systems,
structures, and their impact on disadvantaged groups.
The importance of remedying adverse impact discrimination.
 By recognizing the exclusionary impact of such discrimination, courts can better address
discrimination at a systemic or institutional level. Remedying adverse effects discrimination
allows courts [to] go to the heart of the equality question, to the goal of transformation, to an
examination of the way institutions and relations must be changed in order to make them
available, accessible, meaningful and rewarding for the many diverse groups of which our society
is composed.

49
How to identify adverse effects discrimination?
 Examine the impact of the law;
o Does it indirectly target a group through its impact on members of that group?
o Does the law include seemingly neutral rules, restrictions or criteria that operate in
practice as “built in headwinds” for members of protected groups.
o Or does the law fail to make necessary accommodations for members of protected groups
(i.e. Eldrige)
o Disproportionate impact can be established if members of protected groups are denied
benefits or forced to take on burdens more frequently than others.
What evidence is required?
1. Evidence about the situation of the claimant group – that is evidence about the physical,
social, cultural or other barriers which provide the “full context of the claimant group’s situation”
– which may come from the claimant, from expert witnesses, or through judicial notice. Courts
should be mindful of the risk that the evidence may be under documented as a result of the
group’s disadvantage. These claimants may have to rely more heavily on their own evidence or
evidence from other members of their group
2. Evidence about the results of the law. This evidence may include statistics, especially if the
pool of people adversely affected by a criterion or standard includes both members of a protected
group and members of more advantaged groups. There is no universal measure for what level of
statistical disparity is necessary to demonstrate that there is a disproportionate impact, and the
Court should not craft rigid rules on this issue. The goal of statistical evidence, ultimately, is to
establish “a disparate pattern of exclusion or harm that is statistically significant and not simply
the result of chance”.

 Both evidence of statistical disparity and of broader group disadvantage may demonstrate
disproportionate impact; but neither is mandatory and their significance will vary depending on
the case.
 If a disproportionate impact is established, there is no need for independent proof that the
protected characteristic “caused” the disproportionate impact.
 It is also unnecessary to inquire into whether the law itself was responsible for creating the
background social or physical barriers which made a particular rule, requirement or criterion
disadvantageous for the claimant group.
 There is no need to show that the criteria, characteristics or other factors used in the impugned
law affect all members of a protected group in the same way.

Step 2: Does the law has the effect of reinforcing, perpetuating, or exacerbating
disadvantage.
 No “rigid template” of factors relevant to this inquiry. The goal is to examine the impact of the
harm caused to the affected group. The harm may include “economic exclusion or disadvantage,
social exclusion . . . psychological harms . . . physical harms . . . or political exclusion”, and must
be viewed in light of any systemic or historical disadvantages faced by the claimant group.
 The perpetuation of disadvantage does not become less serious under s. 15(1) simply because it
was relevant to a legitimate state objective. The test for a prima facie breach of s. 15(1) is
concerned with the discriminatory impact of legislation on disadvantaged groups, not with
whether the distinction is justified, an inquiry properly left to s. 1.
 Where possible, the two inquiries should be kept distinct, but there is clearly potential for overlap
in adverse effects cases based on “the impossibility of rigid categorizations”. What matters in the
end is that a court asks and answers the necessary questions relevant to the s. 15(1) inquiry, not
whether it keeps the two steps of the inquiry in two impermeable silos.

50
The Relevance of Choice
 The fact that a person could avoid discrimination by modifying his or her behaviour does not
negate the discriminatory effect. If it were otherwise, an employer who denied women
employment in his factory on the ground that he did not wish to establish female changing
facilities could contend that the real cause of the discriminatory effect is the woman’s “choice”
not to use men’s changing facilities. The very act of forcing some people to make such a choice
violates human dignity, and is therefore inherently discriminatory.
 “Claims of merit, nature and choice are difficult to critically unpack; they so often are the roots of
discrimination. This makes these notions deeply functional in the perpetuation and obfuscation of
inequality.”
 “Any number of structural conditions push people towards their choices, with the result that
certain choices may be made more often by people with particular “personal characteristics”.
This is a key feature of systemic inequality — it develops not out of direct statutory
discrimination, but rather out of the operation of institutions which may seem neutral at first
glance.”
 Deciding to work part-time, for many women, is a “choice” between either staying above or
below the poverty line. The job-sharing program, moreover, was introduced precisely because
some members required access to an alternative to taking leave without pay “due to [their]
personal or family circumstances

Application to the Facts

Is there an adverse impact?
 The use of an RCMP member’s temporary reduction in working hours as a basis to impose less
favourable pension consequences plainly has a disproportionate impact on women. The relevant
evidence — the results of the system — showed that:
o RCMP members who worked reduced hours in the job-sharing program were predominantly
women with young children.
o From 2010-2014, 100 percent of members working reduced hours through job-sharing were
women, and most of them cited childcare as their reason for doing so.
 These statistics were bolstered by compelling evidence about the disadvantages women face as a
group in balancing professional and domestic work
o Women have historically borne the overwhelming share of childcare responsibilities,
part-time workers in Canada are disproportionately women, and they are far more likely
than men to work part-time due to child care responsibilities.
o As a result, they experience less stable employment and periods of “scaling back at
work”, including within police services. Recognizing the reality of gender divisions in
domestic labour and their impact on women’s working lives is neither new nor
disputable.
 “Women are forced to manage family care without impinging on their work obligations. Their
strategies — euphemistically labelled “choices” — often include part-time and precarious forms
of work that typically come with lower wages, fewer benefits, fewer promotional opportunities,
and minimal or no retirement pensions. The impact on women’s economic welfare is
compounded by stereotypical assumptions that women do not merit or want more responsible,
higher-paying jobs because they will inevitably prioritize family over work. The unequal burden
of family care creates and reinforces women’s continuing inequality both inside and outside the
workplace
Does it perpetuate disadvantage?
 The negative pension consequences of job-sharing perpetuate a long-standing source of
disadvantage to women: gender biases within pension plans, which have historically been
designed “for middle and upper-income full-time employees with long service, typically male.”

51
  The structural inequality within pension plans has tangible impacts for women upon retirement.
This Court has described the “feminization of poverty” as an “entrenched social phenomenon” in
Canada
o when one examines statistics on income security in retirement, women are
disproportionately worse off financially than men,
 Pension design choices have, in sum, “far-reaching normative, political and tangible economic
implications for women”.
 Because the RCMP’s design perpetuates a long-standing source of economic disadvantage for
women, the second stage of the s. 15(1) test is satisfied and there is a prima facie breach of s. 15
based on the enumerated ground of sex.

Section 1
Pressing and substantial objective
 The Attorney General bears the burden of showing that classifying full-time RCMP members
who enter job-sharing as part-time workers and excluding them from accessing full-time pension
credit, achieves a compelling state objective. It is the limitation on equality rights that must be
justified, not the legislative scheme as a whole.
 The Attorney General, in my respectful view, has identified no pressing and substantial policy
concern, purpose or principle that explains why job-sharers should not be granted full-time
pension credit for their service.
 On the contrary, this limitation is entirely detached from the purposes of both the job-sharing
scheme and the buy-back provisions, which were intended to ameliorate the position of female
RCMP members who take leave to care for their children.
o The RCMP’s plan provides buy-back rights when a full-time member reduces her hours
from 40 to 0 to care for her child, but, inexplicably, withholds such rights if the same
member for the same reasons reduces her hours from 40 to 10, 20, 30 or some other
number.
o I see no justification for this limitation, let alone a pressing and substantial one. In my
respectful view, therefore, the government has not offered a compelling objective for the
limitation on job-sharing participants wishing to buy back full-time pension credit.
 Since the prima facie breach cannot be justified under s. 1, it is a violation of s. 15 to preclude
Ms. Fraser and her colleagues from buying back their pension credits.
Responding to the dissent
1. Stare decisis
o The version of s. 15(1) advanced in my colleagues’ reasons is essentially that advanced in
the dissenting reasons in Alliance. It was squarely rejected by the majority in that case.
Nothing has happened since Alliance was decided in 2018 to justify discarding its
premises. And no one involved in this case argued that we should, except, inferentially,
my colleagues, who tug at the strands of a prior decision they disagree with in search of
the occasional phrase or paragraph by which they can unravel the precedent. Their
arguments are based on conjecture not reality, calling to mind one writer’s wry
observation that “setting straw men on fire is not what we mean by illumination”.
2. Rewriting the Approach to section 15
o They continue their insistent attack on the foundational premise of this Court’s s. 15
jurisprudence — substantive equality — in favour of a formalistic approach that
embraces “a mechanical and sterile categorization process conducted entirely within the
four corners of the impugned legislation.” It is unfortunate that as the global
jurisprudence has increasingly embraced substantive equality, my colleagues continue to
endorse an approach which evokes the rejected pre-Charter theory whose effect was to
deny access to benefits when that access required accommodation based on difference.

52
 3. The rule of law
o Whatever my colleagues’ definition of “rule of law” is, it must surely include the
assumption that decisions of the Supreme Court will be respected not only by the public,
but by members of the Court. And it must surely also include an assurance to those
seeking constitutional protections that the ongoing repetition in dissenting reasons of
rejected arguments will not require them “with each new case, [to] stand ready to defend
the exact gains that have been won multiple times in the past”.

Contrary to the views of my colleagues, there is nothing “extraordinary” about holding, as we do

here, that such discrimination violates s. 15(1) of the Charter. Based on our jurisprudence, it
would be extraordinary if we did not

The Dissent: (Rowe and Brown JJ)

The test:
1. Does the law, on its face or in its impact, create a distinction on the basis of an
enumerated or analogous ground?
2. Does the law fail to respond to the actual capacities and needs of the group and
instead impose burdens or deny a benefit in a manner that has the effect of
reinforcing, perpetuating, or exacerbating their disadvantage?
Application
The law draws a distinction based on sex
The distinction is not discriminatory primarily because it represents a partial attempt by
government to ameliorate conditions of inequality. The Court is not well positioned to insist that
government fully respond to inequality.

The Need for Deference

 Governments must be afforded the latitude to act incrementally when addressing a deeply
ingrained, complex and persistent social phenomenon such as inequality. In designing legislation
to address a particular equality issue, a government can draw on far more internal and external
expertise than we judges can. It is better positioned than we are to appreciate the consequences of
a particular course of law-making, both upon society and upon public resources. With these
practical realities in mind, we must also recognize that, were a government expected to remove
all inequalities for all groups on every occasion it acted, it may be disinclined to act, given that
any remedial scheme will inevitably be under-inclusive in some respect. That is precisely what
the impugned provisions of the Plan represent: an example of a government acting incrementally
to address inequities that exist in society, when it has no obligation to do so.
 In the case at bar, any disadvantage the appellants face is caused not by the impugned provisions
or any government action, but by the unequal division of household and family responsibilities
and social circumstances such as the availability of quality childcare. The solution to addressing
these underlying matters, which exist outside of the Plan and the purview of courts, is surely not
to strike down remedial legislation.
Substantive Equality?
 For 30 years, this Court has struggled to define the term “substantive equality.” An intelligible
and principled definition continues to be elusive. Indeed, this case illustrates the difficulties posed
by the slippery quality of “substantive equality” — the core value of our colleague’s decision —
and its constant shifting in this Court’s jurisprudence. We do not seek to overturn the
jurisprudence that our colleague recounts in her reasons. Rather, we aim to give effect to it. Our

53
 disagreement is about the meaning and requirements of substantive equality: we view her
approach as lacking in the clarity and guidance necessary to give effect properly to the Charter’s
purposes, notably with regard to legislation that is fundamentally ameliorative.
 The concept has not been defined in a manner that renders s. 15 rights, or even the criteria by
which they are adjudicated, knowable in advance by claimants and the state, or applicable with
any consistency by courts. This lack of definition ex ante is antithetical to any notion of judicial
restraint. Where a legal test lacks defined bounds, courts applying it exercise truly arbitrary
powers of review. And that is the point at which we have arrived with “substantive equality.” It
has become an unbounded, rhetorical vehicle by which the judiciary’s policy preferences
and personal ideologies are imposed piecemeal upon individual cases.
The Rule of Law
 The result of all this is corrosive of the rule of law. Our colleague wonders aloud what our
definition of the rule of law is. We share the views of jurists such as Lord Bingham and Sharpe
J.A.: the concept of the rule of law has interlocking components. One is pertinent here: Canadians
should be governed by rules, stated and knowable in advance, that enable them to guide their
conduct.
Practical Implications
 The failure to properly define the scope of s. 15(1) also has the practical effect of pushing the
bulk of the analysis to s. 1. As a result, courts are not to engage in a substantive analysis of
discrimination (where they have a comparative advantage relative to the legislature), but rather in
the evaluation of policy (where they do not).
 In defining substantive equality, courts must bear in mind two considerations. First, s. 15(1)
cannot actually guarantee equality, in its broadest sense, throughout society. Systemic
disadvantage is just that — systemic, being rooted in social attitudes and institutions. This does
not mean that systemic discrimination cannot or should not be addressed; rather, it simply means
that s. 15(1) is limited in its capacity to do so. Section 15(1) responds only to state action, and
judicial review of state action is ill-suited to implementing the kind of wide-ranging
institutional or policy changes that are necessary to fully address systemic disadvantage.
 Abella fails to define “substantive equality” in terms that allow its meaning to be understood so
that the requirements of s. 15 can be practically knowable and reasonably predictable in advance.
Thus loosely defined, substantive equality is almost infinitely malleable, allowing judges to
invoke it as rhetorical cover for their own policy preferences in deciding a given case. Such vast
and little-bounded discretion does not accord with, but rather departs from, the rule of law.
 As we see it, the sole reason the Plan is being judicially reviewed is because Parliament and the
government tried to be accommodating in their employment options. If they had not offered
pension buy-back rights for members who take LWOP, there would be no basis for judicial
intervention at all. The upshot of our colleague’s reasoning is that the public is now burdened
with new financial obligations, simply because Parliament and the executive dared to address
pre-existing inequality incrementally, instead of taking more radical measures to eliminate it. In
the future, they may well reason that inaction is the safer route.
 Similar issues will undoubtedly arise with any other social welfare legislation or government
attempts to remedy systemic disadvantage. By reserving the right to arbitrarily second-guess and
undo any legislation that attempts to incrementally address systemic disadvantage, the Court
makes it more practically difficult for legislatures and governments to implement policies that
promote equality. Put simply, we see restricting the government’s ability to incrementally address
disadvantage as a peculiar way to promote equality.

Justice Cote
 I am of the view that there is no need to proceed to the second step of the analysis. No distinction
can be made out on the basis of sex under step one. Allowing the appeal on the basis of sex

54
 simpliciter is an attempt to square a circle. The effect of the impugned provisions of the pension
plan is to create a distinction not on the basis of being a woman but being a woman with children.
 A distinction exists not because one is a woman, but because one has caregiving responsibilities.
It seems to me, then, that caregiving status is the only distinction created by the pension plan.
One does not job-share because one is a woman; one job-shares because one needs to take care of
someone.
Accordingly, in light of the conclusion that any distinction here depends not on sex but on
caregiving responsibilities alone and that this Court cannot recognize caregiving, parental, or
family status as an analogous ground in this case, the appellants’ claim must fail at step one of
the s. 15(1) analysis.

The importance of remedying adverse impact discrimination.

By recognizing the exclusionary impact of such discrimination, courts can better address
discrimination at a systemic or institutional … [handout]

How to identify adverse effects discrimination?

1) Examine the impact of the law;
a) Does it indirectly target…
b) C
c) C
d) C

What evidence is required?

1) Evidence about the situation of the claimant group- that is evidence about the physical, social,
cultural or other barriers which provide the “full context of the claimant groups’…
2)

A highly developed, contextual analysis of adverse effects discrimination and how it can be
proved.

The Relevance of Choice

The fact that a person could avoid discrimination by modifying his or her behaviour does not
negate the discriminatory effect.

Abella –
The test of s15(1)

Minority in Fraser:
Formulation of the second step by the dissent
Distinction based on merit privileges certain ways of thinking about merit, and what can
sometimes be concealing discrimination.

What are the disagreements, in essence, between the dissent and majority

 Where the inequality comes from

55
Climate Change and the Charter – Emerging Possibilities
Coming of Age in a Warming World: The Charter’s Section 15(1) Equality
Guarantee and Youth-Led Climate Litigation
Mathur v Ontario, 2020 ONSC 6918
Climate change – class action led by youth – preliminary motion to strike
Ontario’s failure to create a more stringent target to deal with greenhouse gas emissions infringes
the constitutional rights of young people (ss 7, 15)
Relief sought is the court to find that the target created by the ON govt through the cancellation
act violates ss 7 and 15.
Also wants the court to declare that s7 actually includes and protects a right to a stable climate
system which is capable of providing young people and future generations the right to a stable
climate environment.

Finding:
 It is reviewable because it was a cabinet decision.
 It is part of the Cancellation Act.
 Can the speculation be proven at law?
 Judge finds that these are facts that can be proven, or at least some way to make a claim in this
process.

Issue:
Is it justiciable?
 Legitimacy of judicial review, when should the court weight in , and when should they be
deferential to parliament? Based on the capacity and limits of court’s power, as well as the
division of powers, and the nature of the dispute – is this an appropriate problem for an institution
like a court to decide?
 There IS a specific piece of legislation - target, plan, and policy - that can be responded to in this
context
Is there a reasonable prospect of success?
 This would be pushing the boundaries of s7 law. But the court in Gosselin said there may be
cases that need to push those boundaries.

Section 2(a) – Freedom of Religion

Provision:
2. Everyone has the following fundamental freedoms:
a. freedom of conscience and religion.

Sunday Observance – The Early Cases: Big M, Edwards Books

pp. 864 – 884

56
R v Big M Drug Mart Ltd, (1985) 1 SCR 295
Facts:
 Big M Drug Mart was charged with unlawfully carrying on the sale of goods on a Sunday contrary to
the Lord's Day Act of 1906. At trial the store was acquitted and an appeal was dismissed by the
Alberta Court of Appeal

Issues:
 Whether the Lord’s Day Act violates freedom of conscience and religion?

Holding:
 Yes, the Act violates freedom of religion by compelling sabbath observance

R v Edwards Books and Art Ltd, (1986) 2 SCR 713

Facts:
 Retail Business Holidays Act by the province of Ontario with arguably a secular purpose. The
province wanted to impose a retail day of rest. One of the purposes was to protect retail workers,
to ensure that retail workers were not taken advantage of. The Act that identified holidays and
Sundays where stores cannot be open. There were exceptions, for instance, like selling flowers on
Mother’s Day which always lands on a Sunday.
 Exceptions: corner stores, etc. and businesses with less than 7 or fewer employees and business
with less than 5,000 sq. The exception for these businesses is that if they do not observe Sundays
as their Sabbath day, they can take Saturday off and open on Sunday.
 The purpose of the Act was to protect retail workers (give them Sunday off) and have uniform
holidays.
Issue:
 Does this piece of legislation violate 2(a)?
Holding:
 No, it does not – Act is allowed to stand

Two ways the act coerces behavior; both are indirect:

1. Makes it difficult for Saturday observing retailers and retail store owners to observe their Sabbath
because the result might be that they must close for two days.
2. Act compels non-believers to conform to the majoritarian belief of a Sunday Sabbath.
 Force those people to conform to Sunday Sabbath because they cannot go shopping.

Indirect coercion from the act:

 Should section 2(a) protect indirect coercion of behaviour?
 Yes, but indirect coercion must be more than trivial and insubstantial. The court is concerned
with burdens that reasonable threat religious freedom.

The Restriction and Accommodation of Religious Practice: Amselem

pp.906 – 919
Syndicat Northcrest v Amselem (2004) SCC

57
Defines what constitutes a religious belief
 Religion can be your own belief, highly personalized and is about internal autonomy
and freedom. Religious freedoms is entirely subjective.
 “Secular courts should not engage in objective analysis of whether something is
required by a particular religious’ faith”

Courts are in the business of analyzing sincerity of the witness and should instead ask if the
belief in question is sincere.
" The Condo board’s policy violated 2(a)
" No evidence that the succah will have any adverse impacts on the property value
" The policy is a substantial interference with religious freedom, and this outweighs the
unsubstantiated claims of the diminution in value

Freedom of Religion Analysis

Freedom of Religion Analysis:
Step 1
• Claimant has a practice or belief, having a nexus with religion, which calls for a
particular line of conduct, either by being objectively or subjectively obligatory or
customary, or by, in general, subjectively engendering a personal connection with the
divine or with the subject or object of an individual’s spiritual faith, irrespective of
whether a particular practice or belief is required by official religious dogma or is in
conformity with the position of religious officials; and
• Claimant is Sincere in their belief
Step 2
• Examining the context, is the infringement non-trivial and substantial

The Restriction and Accommodation of Religious Practice: Hutterian

Brethren
pp. 923 – 941
Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37
• Important section 1 case
• Highlighting differing views with respect to deference and freedom of religion
• The regulation requiring driver’s license photographs was upheld under s. 1
• Where the validity of a law is at stake and accommodating a religious belief would
significantly compromise the govt.’s objective, accommodation is not required. While
the Charter guarantees freedom of religion, it does not indemnify practitioners against of
all costs incident to the practice.
Facts:
 Alberta’s Traffic Safety Act, 2000 requires all persons who drive motor vehicles on
highways to hold driver’s licence
 Since 1974, each licence has borne a photograph of the licence holder, subject to
exemptions for people who objected to having their photographs taken on religious
grounds → Condition Code G license
 In 2003, the Province adopted a new regulation and made the photo requirement
universal
58
  The Wilson Colony of Hutterian Brethren sincerely believe that the Second
Commandment prohibits them from having their photograph willingly taken and objected
to having their photographs taken on religious grounds
 Unable to reach an agreement with the Province, the members of the Wilson Colony
challenged the constitutionality of the regulation alleging an unjustifiable breach of their
religious freedom. The case proceeded on the basis that the universal photo requirement
infringes s. 2 (a) of the Charter
 The claimants asserts that if members could not obtain driver’s licences, the viability of
their communal lifestyle would be threatened
 The Province claimed that the adoption of the universal photo requirement was connected
to a new system aimed at minimizing identity theft associated with driver’s licences and
that the new facial recognition data bank was aimed at reducing the risk of this type of
fraud
History
Chambers judges and CA held that infringement not justified under s 1

Holding:
Appeal allowed. Alberta photo requirement violates s 2(a) rights of Hutterites but is justified
under s 1.

Ratio:
Where the validity of a law is at stake and accommodating a religious belief would significantly
compromise the govt.’s objective, accommodation is not required. While the Charter
guarantees freedom of religion, it does not indemnify practitioners against of all costs incident to
the practice

Analysis:
McLachlin (+Binnie, Deschamps, Rothstein concurring):
 Brethren argue regulation forces members to choose between obeying the Second
Commandment & adhering to their rural communal lifestyle thereby limiting their
religious freedom & violating s 2(a)
 Province concedes that there is a sincere belief/practice that has a nexus with religion;
Court also accepts more than insubstantial
Section 1 Analysis
 Deference
o Court must have a degree of deference
o Primary responsibility for making difficult choices involved in public governance
falls on the elected legislature & those it appoints to carry out policies (35)
o Giving effect to each religious claim could seriously undermine the universality
of many regulatory programs to the overall detriment of the community, including
the attempt to reduce abuse of driver’s license at issue here (36)
o Where a complex regulatory response to a social problem is challenged, the courts
will generally take a more deferential posture through the s 1 analysis (37)
 Is there Purpose Pressing and Substantial?
o Purpose: Maintaining the integrity of the driver’s license system in a way that
minimizes the risk of identity theft → pressing & substantial (42)

59
 o Purpose of universal photo is to have a complete digital data bank of facil photos
to prevent wrongdoers from using driver’s licenses as breeder documents for
identity theft
 Rational Connection?
o Yes; connected to purpose; more effective than granting exemptions to people
who object to photos being taken on religious grounds (49; 52)
 Minimal Impairment?
o Alternatives need not satisfy the objective exactly (55)
o Question is whether the means chosen to further its purposes is reasonably
tailored to address problem of identity theft associated with driver’s license (56)
o Province proposed alternatives, but were objected by Hutterian claimants (58);
Their only alternative is no photo with “Not to be used for identification
purposes” (58)
o Hutterian proposal would not prevent a person from assuming identity of license
holder & producing a fake document, which could not be check in the absence of
a photo in the back (59)
 Bank neutralized without photo; risk of theft
o *** Freedom of region cases may present “all of nothing” dilemma*** → this
is considered during proportionality of effects section
o Even though 700,000 Albertans do not have license & risk of a few hundred
religious objectors is minimal, gov’t goal is not to eliminate all identity theft but
identity theft associated with integrity of driver’s licensing system (para 63) →
Against Abella
o Yes; universal photo requirement minimally impairs s 2(a) right
 Is the law Proportionate in its effect?
o Salutary Effects:
 Enhancing security of the driver’s licensing scheme → most compelling
reason; ensures that no person holds more than one license; requiring all
license holders to have photo in data bank will accomplish objectives;
exemptions undermine the certainty with which the gov’t is able to say a
given license corresponds to an identified individual who holds just one
license (80)
 Assisting in roadside safety & identification
 Eventually harmonizing Alberta’s licensing scheme with those in other
jurisdictions
o Deleterious Effects
 Effect is not being able to drive on the highway → this does not rise to the
level of depriving the Hutterian claimants of meaningful choice as to their
religious practice or adversely impacting other Charter values (96)
 Evidence does not suggest that arranging alternative means of highway
transport would end the Colony’s way of life → may be able to hire
people with driver’s licenses for purposes of maintaining rural way of life
 Hiring transport might impose additional cost but not prohibitive (97)
 Driving is a privilege, not a right (98)
o Salutary vs Deleterious Effects

60
  Limit imposes costs and inconvenience, but does not deprives members of
their ability to live in accordance with their beliefs
 Deleterious effects, while not trivial, fall at the less serious end of the
scale
Impact of limit on religious practice with universal photo requirement for
obtaining driver’s license is proportionate

Abella (Dissenting)
 Freedom of religion has both individual and collective aspects (130) → both engaged
here
 Minimal Impairment
o While the wider the use of photographs, the greater the minimization of risk, at
this stage, we do not asses whether the infringing measure fulfills the govern’s
objective more perfectly than any other, but whether the means chosen impair the
right no more than necessary to achieve the objective (147)
o The law is analogous to a total ban; all alternatives involve taking a
photograph, which offends Wilson Colony members (148)
***do not minimally impair the Hutterites’ religious rights***
 Proportionality
o Salutary Effects
 No evidence from gov’t to suggest that exemptions caused any harm to
integrity of licensing system; no basis for determining why exemption is
no longer feasible & so dramatically obstructs gov’ts objectives that it
cannot be reinstated (156)
 700,000 Albertans without drivers’ licenses & no photograph; benefit of
adding a few Hutterites marginal
 Other identity documents which do not include photograph (i.e. birth
certificates, SIN, etc.)
***effects slight & largely hypothetical***
o Deleterious Effects
 Choice between freedom of religion & not having a license (collateral
impacts on way of life) (163)
 Mandatory photo requirement is a form of indirect coercion that
places the Wilson Colony members in position of choosing between
religious beliefs or giving up self-sufficiency of their community (170)
 Once gov’t provides benefit, obliged to do so in non-discriminatory
way; difference between “compulsory” gov’t program and “privilege”
is troubling (171) → driving can have profound significance on an
individual’s life or livelihood & gov’t required to administer it in a
fair & constitutional manner (172)
***disproportion between harmful effects of requirement in comparison to
minimal salutary effects***

LeBel (+Fish concurring) (Dissenting)

 Crux of matter lies in proportionality analysis (the minimal impairment test & balancing
effects)

61
 Agrees with Abella
Absolute safety impossible in a democratic society

Religious Organizations and Institutions

pp. 962 – 968
TWU (no. 1) – Trinity Western University v British Columbia College of Teacher,
2001 SCC
Minority:
Important to have supportive environment of the LGBTQ community. It is reasonable for the BC
college of teachers to act on preventing that.

Majority:
Regulator’s obligation to regulate in a way that is consistent with public interest. They say the
practices are discriminatory because of the covenant students had to sign when entering the
school. They had to sign away their rights to same sex marriage or extra-marital sexual relations.

BC college of teachers has delegated authority to regulate the teaching society

SCC does an administrative review of a regulatory body.

Did the BC college of teachers actually have the authority to consider that TWU asks the
students to sign a covenant? Or was it outside their legit authority?

Para 13 says college had the authority and right to consider the practices that exist at TWU with
respect to the public interest because of the teacher’s role/duty/function.

What standard of review does the court use when looking at this kind of regulatory body?
We ask teachers to regulate the teachers behaviour because they are experts on teaching.

Issue of how deferential the court should be to the fact that the administrative body exists
because of their expertise on the particular body? Did the regulatory body act in line with its
statutory duty?

What does the court say about the decision the BC college of teachers made?

Conflict between equality rights and freedom of religion rights. Court is trying ot navigate how
to manage that conflict.

The court then asks if there is evidence of discriminatory practices at TWU, and whether they
establish a risk of discrimination to the degree that it would have an impact or create a significant
risk that those discriminatory beliefs could be transmitted in a public education system?

62
Court is entitled to look at s15 violation at TWU. But also required to look at religious freedom.
So how to reconcile the religious freedom of someone who wants to be educated at TWU versus
the equality concerns of BC students at BC public schools, and their parents, and society etc.

Court says the technique to figure that out is to properly define the scope of each right.
Neither right is absolute. Freedom of religion is limited by the rights and freedoms of others.
All rights subject to limits.
Para 30 > in terms of religious freedom, there is a diff between freedom to believe something and
freedom to act on that belief.
Para 31 > no hierarchy of charter rights, refer to context.

Para 32 > the college of teacher have interfered with the rel freedoms of students who want to
pursue studies at TWU without evidence that those students will be impacted and that the
discrimination will come through in to the public school system. No evidence suggests that TWU
teachers would be intolerant to LGBTQ students when they are teaching.

Difference between thinking/believing something and acting on. No evidence of teachers acting
discriminatory to others simply because they don’t believe in it for themselves.
Also, there is a slippery slope of saying someone cant become a teacher because of certain
religious beliefs!

Not enough evidence to support the transmission of discriminatory beliefs after the teaching
education is complete.

Is there a distinction between belief and conduct that makes sense, and if so is that a secular
approach to religious freedom?
If it is, is that a problem? Does a freedom of religion analysis need to avoid a secular analysis of
its right/violation?

Religious commitments that are inconsistent with other charter values!

What evidence would have sufficed? To show that the teachers WOULD or MIGHT transmit the
discrimination? > short of showing a student had been harmed in some way. (which is why
minority errs on the side of caution in that the risk is real, and the populous at risk are
particularly vulnerable)

Question to think about: Why do we protect private institutions that promote discriminatory
beliefs?

Can we tolerate those who themselves are intolerant? Because of commitments they hold as
part of their religious identity?

What are the implications of taking a TWU education into public society?

63
TWU (no. 2) – LAW SOCIETY OF BRITISH COLUMBIA V TRINITY WESTERN
UNIVERSITY, 2018 SCC 32, [2018] SCJ No 32
TWU case #2
Attempts to open a Law School.
First issue, does the law school comply with Canadian accreditation?

6 say yes, 3 no (provinces law societies)

BC and Nova Scotia decisions were overturned on appeal.

In Ontario, it was an enormously controversial debate, with a 28 to 21 vote to deny accreditation
to TWU.
Ontario Court of Appeal upheld the decision.

Crux od decision – freedom of rel and equality guarantees

Why is the decision in TWU #2 not determined by the decision in TWU #1?
 TWU #1 turned on a question of evidence on how the teachers would practice/behave in a public
context.
 SCC said there’s a freedom of religion claim butting up against the equality claim, but no
evidence in practice.
 TWU #2 the case was different. Not about whether lawyers who trained at TWU would be
good/competent lawyers.
 Focussed on the question of how this creation of spaces for LGBTQ students would be impacted
and not apply there.
 The role of the LSO itself, how they would be perceived or understood to the public.
 Also, if the LSO decided to accept them to accreditation, it might make them seem like it’s not in
the public interest that prevents access to law school through a discriminatory practice. It detracts
from the LSO’s understanding of the public interest by allowing this discriminatory practice.

Issue:
The covenant, religiously based code of conduct.
The SCC engages in judicial review of the LSO’s decision, of the impact of that decision on
freedom of religion rights and freedom of equality rights.

SCC decided the LSO has to engage in a balancing of proportionality, and the balancing they did
was reasonable.

Is there an individual religious freedom right? Court says yes.

Religion is about rel relationships and beliefs, socially embedded…

The religious environment is significant to the groups beliefs etc

There is an interference with the religious freedoms of TWU that is more than trivial or
substantial.

64
Step 2, balancing of the rights. Deference is owed to an administrative body that has expertise in
their area.
Charter rights must be affected as little as reasonably possible…
How substantial is the limitation vs the benefits of not accrediting the TWU program?
Court posits rel freedoms of students who want to go to TWU, and the LGBTQ students who
want to apply to law school.
The covenant is degrading and disrespectful, and the violation of equality rights is substantial.
Also, no middle ground, either approve or disapprove.

Suggested TWU could make the covenant voluntary, but TWU not prepared to compromise.

Court decides:
In order to maintain equal access to the diversity in the legal profession, it was important for the
LSO to pay attention to the equality rights of applicants.

Summary on para 103.

Argument of dissent captured in 260 and 261

It calls to the state to decide who controls the gate of access to the public sphere?

Is the state a neutral state? Or a state that has a particular vision of religion, from a secular
perspective?

TWU No.1
Compared to Alberta v Hutterian Brethren 2009 SCC 37

Trinity Western University > mandatory covenant.

Both involve the SCC reviewing the decisions of administrative tribunals – which are created by statute,
and are vested with discretion to regulate the organization.

TWU No. 1 whether or not the discriminatory practices at TWU create a risk of discrimination to the
public by a teacher being educated at TWU?
What the court concludes is that the College of Teachers has no evidence of that, and therefore no
evidence for their interference, because it would not be proven to prevent harm.

TWU No.2
Analysis is not about how a lawyer who graduates from a TWU law school
The role of the law society with respect to an educational institution that uses discriminatory practices in
its enrollment criteria.
Prevents access by a discriminatory policy.

Different framing than TWU 1

Majority concludes that the interference with religious freedom is more than trivial, is substantial. The
actual limitation on religious freedom is relatively minor, but the harm caused to potential applicants is
degrading and disrespectful.

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Minority decision: it IS the role of the law society to protect a minority religious community, and so it is
there role to protect this freedom.
How and if this freedom is engaged by making the covenant mandatory
Who are we imagining as an affected party? > potential TWU applicant? Those who wish to study law in
a religious setting, OR is it students who choose not to apply because covenant is inconsistent with their
lifestyle, or more broadly students and members of the public who see a private institution as protected
and supported by the Law Society.
Is there any potential for compromise?

KTUNAXA NATION V BRITISH COLUMBIA (FORESTS, LANDS AND

NATURAL RESOURCE OPERATIONS) 2017 SCC 54, [2017] 2 SCR 386
S.2(a)
After SCC released its decision against Kt people, in a freedom of religion context.
The deal for building fell apart.
Jan. 2020 the Kt Nation council, announced the jumbo valley will remain wild.

Buyout of all tenures of development of resorts

Does the claim fit into the religious freedom ideals?

Have the claimants demonstrated sincere belief that has a nexus with religion?
YES

Has the state conduct interfered in a nontrivial and substantial way?

Para 70 > court says not an interference with freedom of religion, it’s a novel claim. Its not about
Ktunaxa’s ability to believe in the grizzly bear spirit, or manifest it. But is asking the court to protect its
physical region where the belief is held. Outside of the court’s understanding of what freedom of religion
is.
They characterize the area as a focal point of practice, but the state protects the rights to HOLD the belief
and manifest them, but not the spiritual focal point of the religion.

Minority Justice Moldaver (J. Cote concurring)

 Did not disagree – the decision the minister made was reasonable
 Whether or not there was religious freedom at issue
 Does the state’s conduct devoid the religion of all spiritual meaning, or ability to practice that
religious right.
 We have to take a broad approach to freedom of religion.
 We should be generous and not legalistic when it comes to freedom of religion
 The Q to ask is, has the state taken away the spiritual significance of the land
 The capacity to pass on spiritual connections to the land to future generations, so if the grizzly
bear spirit leaves, this will not be possible. The connection with the physical world that is
intrinsic to many indigenous practices would be void if it is taken over by a ski resort.
 The court would need to protect what makes indigenous spirituality unique.

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