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Charter Answer Question 1

Constitutional Law (University of Ottawa)

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Question 1

Answer

Area of Law: Charter of Rights and Freedoms (Freedom of Speech)

Issue(s):
1. Whether or not the Charter applies to Toronto Transit Commission (TTC)?

2. Whether or not TTC, if applied by the Charter, infringed Jane’s freedom of expression
under the Charter by implementing the “Pleasant Ride” Regulations?

3. Whether or not TTC, by its actions, intended to limit protected expression or whether its
act had the effect of limiting protected expression?

4. Whether or not the Jane’s treaty right of freedom of expression, if infringed, can be
justified under Section 1 of the Charter?

Laying down the Law:

Section 2 (b) of the Charter of Rights and Freedoms: “Everyone has the following
fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication”.

RWDSU, Local 558 V Pepsi-Cola Canada Beverages (West) Ltd. (Principle): The core values
which free expression promotes include self-fulfilment, participation in social and political
decision-making, and the communal exchange of ideas. Free speech protects human dignity
and the right to think and reflect freely on one’s circumstances and condition. It allows a
person to speak not only for the sake of expression itself, but also to advocate change,
attempting to persuade others in the hope of improving one’s life and perhaps the wider
social, political and economic environment.

Section 2(b) Analysis

There is a four-step test if there is a violation of Section 2(b)

1. Does the Charter apply?:

There are two questions to ask when to deals with the application of the charter:
a. Who has standing? Or who has the right to make a claim for the breach of a charter
right? – You need to have standing to be able to be entitled to a remedy under the
charter. The charter uses different language when describing who is entitled to a
charter right. Section 2, 7,8,9,10,12 and 17 use the word everyone when describing
who has the right.
b. Who is subject to the burden imposed by the charter? Or whose actions are
governed by the charter?

Section 32(1) of the Charter states: “This Charter applies (a) to the Parliament and
government of Canada in respect of all matters within the authority of Parliament

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including all matters relating to the Yukon Territory and Northwest Territories; and (b) to
the legislature and government of each province in respect of all matters within the
authority of the legislature of each province”. The charter applies to Parliament, the
government of Canada, and the provincial governments.

Here you determine if the infringing party is a government entity or agent. Government
action including the common law would make the charter apply. Government with
legislation would make the charter apply. Private parties plus legislation would make the
charter apply. Private parties including the common law would not make the charter
apply but only the charter values.

What is government action?

McKinnely V University of Guelph: Faculty members at the University challenged the
university’s mandatory retirement policy, saying that the policy violated Section 15 of the
charter’s equality rights on the basis of age. The court had to determine whether the
charter applied to the policies of the university.

When the university entered into contractual discussions and agreement with its staff
the university was not abiding by any statutory requirement they were doing so under
their own will. While university are created by statute and subject to government
regulation and rely on government funding, they independently manage their own daily
affairs. The government does not dictate how funds are allocated. The university has its
own discretion to decide what program it would fund and the contracts of its staff.
However, there are instances where entities created by statute maybe a government
actor for the purposes of Section 32. The court would consider whether government
delegate, whether:
A. Government delegates authority to the entity.
B. Government legally controls the entity.
C. If the entity carries out a government policy.

The more the elements are present the more likely the entity will be a government actor.
However, in this case the university was not contributed by the government in any way,
shape or form. Therefore, it was not a government actor under Section 32 of the charter
and did not apply to its policies.

Douglas/Kwantlen Faculty Assn. V Douglas College: The issue before the court was
mandatory retirement at a community college. The Supreme Court held that the
community college was a government actor like the University of Guelph. Douglas
College was created by statute which created community college. There was a difference
with how the college operated. For example: The college was managed by a board of
directors (all seven directors were appointed by the government). The government
minister was able to administer, implement rules and direct the college’s operations. The
government approved the college’s by laws and the government provided 83% of the
school’s funding.

The court rules that Douglas College did not have the independence the University of
Guelph enjoyed, and it was a government actor. The charter applied to the government’s

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policies looking at whether a government institution is a government actor or not you

would have to look at these factors.

Eldridge V British Colombia (Attorney-General): The court was tasked with deciding
when a hospital might be subject to the charter. In their decision the court said that the
legislature could not enact laws that that infringed the charter, nor can they authorized
or empower another entity or person to do so. Further, even though the legislature may
give authority to a body that is not subject to the charter the charter still applies to all
activities of government, whether or not they are characterized as private. The charter
may also apply to non-governmental entities in respect of certain inherently
governmental actions.

Governments should not be allowed to evade their constitutional responsibilities by

delegating the implementation of policies and programs to private entities. There are
two important points in respect to this principle:

a. The court reiterated the principles in University of Guelph, the mere fact that an
entity performs a public function or an activity that is public in nature is not sufficient
to bring it within the definition of government under Section 32. In order for the
charter to apply to a private entity it must be found to be implementing a specific
government policy or program.

b. There is a precise manor in which the charter may be held to apply to a government
entity. This is a two-step process:
i. It must be determined that the entity is a government actor for the purposes of
Section 32, this involves enquiring into whether the entity whose actions have
been given rise to an alleged charter breach can either by its very nature or in
virtue of the degree of governmental control exercise over it properly be
characterized as government within the meaning of Section 32(1).
ii. An entity may be found to attract charter scrutiny with respect to particular
activity that can be ascribed to government. This demands an investigation not
into the nature of the entity whose activity itself. In such cases equality of the act
at issue rather of than quality of the actor must be scrutinized.

In Eldridge the court held that a hospital is one of the quasi-governmental entities. There
are two types of categories of entity that an entity can fall under government by its very
nature and int these cases the charter will apply to everything they do. You can have an
entity which is not a governmental actor, but they implement policy or act on behalf of
government and these quasi-governmental bodies are still subject to the charter to a
certain degree, if they were not the government could in effect avoid charter obligations
by delegating its process to private entities. Eldridge set out the test to determining
whether an entity falls under Section 32 or not.

If an entity is performing a government activity it is more likely the charter will apply, but
it will only apply to that specific activity. In Eldridge the court said that this is not a
decision related to the day-to-day operations of the hospital, this was dealing with
carrying out of the health care and this was a government activity and the charter

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applied. There was a connection of the government policy and the hospital’s conduct. So
by failing to provide sign language interpreters the hospital had denied the appellants
the right under Section 15.

2. Define the activity: The courts take a very broad approach and say any activity that
conveys or attempts to convey a meaning will amount to expression under Section 2(b).
In certain circumstances actions that are not accompanied with words can still be
considered expression. Examples: pornography, child pornography (limited under Section
1 of the Charter), hate speech (limited under Section 1 of the Charter).

There is one exception to the broad definition of expression and that is activity or
expression that takes the form of violence. Example: Terrorism (Not protected freedom
of expression).

Irwin Toy Ltd. V Quebec (Attorney-General): The court stated that even commercial
speech could be protected under Section 2(b). In this case Irwin Toy, a toy manufacturer
in Quebec was challenging legislation that basically prohibited advertising or promoting
toys to children under the age of 13. The Supreme Court set out the framework of
expression. They held that commercial speech aimed at an entirely commercial purpose
would be protected under Section 2(b).

Ford V Quebec: This case concerned the constitutionality of the charter of the French
language which regulated the use of language in the province. It made French the official
language of Quebec and regulated the use of languages. For example: it made it
mandatory for public commercial signs be in French only.

The Quebec board of the French language had told Ford that she needed to serve
customers in French and replace all bilingual signs with unilingual French signs. She was
fined for violating the charter of the French language.

The Supreme Court held that the charter of the French language violated Section 2(b) of
the charter and was not justified under Section 1. The court said that a law prohibiting
the use of any language other than French on commercial signage is unconstitutional.
The French charter provisions were not valid.

3. Determine if there is an infringement or violation of a person’s freedom of expression:

The court in determining if there is an infringement distinguishes between Intentional
limitation and Effect Space limitations on expression.

Intentional Limit: Where the government deliberately sets out to restrict expression or
expression-related activities. These limits can be related to content or expression-related
activity.

a. Content-Based Limitation is aimed at the content of what is being said or done.

When the government deliberately restricts a specific type of expression related to
the content of the message. These restrictions limit a particular type of expression.
For example: Government ban on violent cartoons. Restrictions on hate speech are

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content based restrictions, they limit what a person can say. The purpose of this type
of restriction is to limit the communication of specific content.

b. Expression-Related Limitation is aimed at when the government deliberately

restricts an action or activity that is related to expression. Often effect based
limitations are not interfered to regulate expression or limit expression, but they
have effect on a person’s ability to express themselves. An example: littering laws,
the person of a littering law is to maintain a clean environment. This could have an
indirect impact on expression. If you drop broachers from an airplane criticizing the
government you are exercising a form of expression, however, you are littering, so
you would be liable for littering. This limits your right to expression. Another
example: a ban on handing out flyers that is restricted. The activity is directly linked
to expression because the main reason to hand out flyers is to communicate with
others.

Effects-Based Limit: Where a government policy has the effect of limiting both
expressive and non-expressive activity. An example of an effects-based limit is a
neighbourhood noise restriction. This policy has the effect of limiting activities that do
not convey meaning, such as construction work or yard work, but it also has the effect of
limiting activities that do convey meaning, such as advertisements from loudspeakers.

Irwin Toy V. Quebec: The majority found that if the government purpose limited specific
content or forms of expression linked to content, then the government had infringed
Section 2(b), without further analysis. However, if the government act only led to an
effects-based limitation, then the court must decide whether the content that is being
restricted relates to the care reasons for protecting expression in a free and democratic
society.

The majority identified the three core reasons for protecting expression as:

Was also found in R V Keegstra (Cardinal Values under Section 2(b)):

i. The marketplace of ideas (Seeking and attaining truth) – All ideas and beliefs
should be available so we can decide what is truth and what is not.
ii. Political debate (The participation in social political decision making)
iii. Individual self-fulfilment and human flourishing

In an effects-based limitation situation, the complainant must prove to the court that the
expression falls within one or more of these three categories in order to prove that the
government has infringed Section 2(b). If the complainant cannot prove that the content
of its expression falls within one of these categories, the Section 2(b) of the Charter has
not been infringed.

4. Section 1 Analysis – Section 1 of the Charter of Rights and Freedoms: “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”.

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Once the activity has been defined and it has been determined that government action
or legislation is limiting the right then we can invoke the Section 1 analysis in the Oakes
Test. For example: Saskatchewan (Human Rights Commission) V. Whatcott or R V.
Keegstra – Hate speech was protected expression under Section 2(b) then the Oakes
Test was applied to access whether or not the limitation on expression was justified. The
form is what matters and not the content of the expression. A person’s message can be
utterly repugnant, but it will still fall under Section 2(b), and it is only under Section 1
that any limitation will be justified, the only exception being violence.

Justice Dickson stated in R V Keegstra: Any limitation of expression under Section 2(b)
needs to be done through a Section 1 analysis it would be inappropriate to limit the
scope of Section 2(b) because of one particular context or one particular situation.

When arguing that a government act infringes the Charter, the burden of proof (or
“onus”) is on the party claiming an infringement to prove on a balance of probabilities
that their freedom has been violated. If they are successful, then the onus shifts to the
government to justify the limitation under Section 1.

The courts apply the Oakes Test using the following steps:

1. Is the objective of the legislation pressing and substantial enough (of sufficient
importance) in a free and democratic society to justify a limit on a constitutionally
guaranteed right or freedom? – Objective should be stated in relation to
infringement of Charter. The burden rests with the government to show on a balance
of probabilities that there is a valid objective for the government legislation or
action. Note: Shifting objectives not permitted.

What is meant by valid objective? To be a valid objective there must be a pressing

and substantial concern that is more than trivial in a free and democratic society. This
step looks at the purpose of the infringing measure and here the government should
provide a reason for the infringement.

Examples of valid objectives: Montreal (City) V. 2952-1366 Quebec Inc. – The

Supreme Court held that there was an infringement of the claimant’s expression,
however, it was justified under Section 1. The objective of combating noise pollution
was a pressing and substantial objective. Saskatchewan V. Whatcott – For the first
step of the Oakes Test the court had not difficulty determining if there was a valid
objective. The objective of the human rights code was tackling causes of
discriminatory activity to reduce the harmful effect and social costs of discrimination.
This was a pressing and substantial purpose. Irwin Toy Ltd. V. Quebec (Attorney-
General) – The court found that the first consideration of the Oakes Test was met as
there was a pressing and substantial objective to the legislation which was to protect
a vulnerable group (Children) from manipulation.

Justice Dickson in the R V Oakes case listed some examples of the values inherent to
a free and democratic society. These include: respect for the inherent dignity of the
human person, commitment to social justice and equality, accommodation of a wide

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variety of beliefs, respect for cultural and group identity, and faith and social and
political institutions which enhanced the participation of individuals and groups in
society.

2. Are the means chosen by the government to fulfil this objective reasonable (The
Proportional Test)
a. Is there a rational connection between the measures adopted and the objective?
– Government must first establish provision of law which limits Charter right is
rationally connected to law’s purpose. If it is arbitrary or serves no logical
purpose, then it will not meet this standard. The limitation itself cannot be
arbitrary, grossly unfair or based on completely irrational considerations. The
court had said that this stage of the test is not overly onerous.

Examples of rational connection in case law: Montreal (City) V. 2952-1366

Quebec Inc. – The Supreme Court held that the limit on noise produced by the
equipment was rashly connected to the objective of preventing noise pollution.
Saskatchewan V. Whatcott – The courts said that the words ‘ridicule’ ‘belittles’
‘or otherwise affronts the dignity’ of did not rise to the level of ardent and
extreme feelings constituting hatred. This part was not rationally connected to
the legislative purpose of addressing discrimination of protected groups. The
court said once these words are severed from the provision it would be valid.
Irwin Toy Ltd. V. Quebec (Attorney-General) – The court found that the ban was
rationally connected to the objective of manipulating children.

b. Do the measures impair the right or freedom as little as possible? – Provision

must minimally impair violated Charter right. Provision that limits Charter right
will be constitutional only if it impairs Charter right as little as possible or is within
a range of reasonably supportable alternatives.

Justice Dickson in the Oakes decision set out the Least Intrusive Means (LIS)
Principle. This is a high standard; the test is whether there is another reasonable
way for the legislature to satisfy its objectives that will be less intrusive on a
charter right. The question being asked is whether the right is being impaired as
little and reasonably possible. This LIS still has to be rationally connected to the
objective. If there is an alternative that would impair the right less, but it does
not achieve the objective then it will not be a valid limitation. The court will
balance the interests of the government with the interests of the individual
claiming the right. If the limitation falls within a range of reasonable alternatives,
then the court generally will override the government action, unless it can be
shown that there is a clearly superior alternative.

Examples of minimal impairment in case law: Montreal (City) V. 2952-1366

Quebec Inc. – The Supreme Court held that the measures impaired freedom of
expression in a reasonably minimal way. There was no practical way to limit
noise. Saskatchewan V. Whatcott – The courts said that Section 14(1)(b) satisfied
this requirement. However, the words ‘ridicule’ ‘belittles’ ‘or otherwise affronts
the dignity’ of did not minimally impair freedom of expression. The fact that the

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legislative is deferential is more than enough, it makes it within the margin of

appreciation. Irwin Toy Ltd. V. Quebec (Attorney-General) – The court found that
the ban shows minimal impairment on freedom of expression with the goal of
protecting children.

c. Are the positive effects of the limit (given the objective) proportional to the
negative effects? – Court examines law’s proportionate effects. Even if
government can satisfy above steps, effect of provision on Charter rights may be
too high a price to pay for advantage provision would provide in advancing law’s
purpose.

This step looks at whether the benefits of limiting the right outweigh the harms
as a result of limiting that right. The more severe or harmful the effects of limiting
the right, then the more important and pressing the purpose of limiting the right
is going to have to be.

Examples of deleterious effects in case law: Montreal (City) V. 2952-1366 Quebec

Inc. – The Supreme Court held that the prejudicial effects on freedom of
expression flowing from the regulation of noise produced by sound equipment
that interferes with the peaceful use and enjoyment of the urban environment
are proportionate to the beneficial effects of reducing noise pollution on the
streets and the neighbourhoods. Saskatchewan V. Whatcott – The courts said
that the benefits of suppressing hate speech and its harmful effects outweigh the
detrimental effect of restricting expression which does little to promote the
values underlying freedom of expression. Irwin Toy Ltd. V. Quebec (Attorney-
General) – It held that since advertisers were still able to direct their advertising
to adults, who ultimately decide what products to buy for their children, the
negative effect of banning advertising to children did not outweigh the positive
effect of protecting children from manipulation by those advertisements.

Under the charter if you can show that harm clearly outweighs the government’s
objective then the limitation will not be valid.

Remedies
Section 24 of Charter of Rights and Freedoms: “(1) Anyone whose rights or freedoms, as
guaranteed by this Charter, have been infringed or denied may apply to a court of
competent jurisdiction to obtain such remedy as the court considers appropriate and just in
the circumstances. (2) Where in proceedings under subsection (1), a court concludes that
evidence was obtained in a manner that infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence shall be excluded if it is established that having
regard to all the circumstances the admission of it in the proceedings would bring the
administration of justice into disrepute”.

The remedy a person can obtain is one that the court considers appropriate and just in the
circumstances. This is an exceptionally broad power that is granted in issuing remedies.
There is a wide range of remedies that are available under Section 24(1). Literally any the

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court considers appropriate and just in the circumstances can be a remedy for the purposes
of Section 24(1).

There are three primary factors the court will look at when considering what remedies
should be awarded:
a. Ensuring that the wrong is cured.
b. Ensuring that the government is compliant in the future.
c. Avoiding unnecessary interference with Government power.

To seek a remedy under Section 24(1), there must be a violation of a charter right. To do this
the aggrieved party has to prove that they have standing. They have to show that a right or
freedom was guaranteed by the charter and this right and freedom was infringed or denied.
You can also have standing for apprehended infringements. If you believe that the
government is about to infringe on your rights then you can seek an injunction preventing
the government from acting in a manner that infringes on your charter right.

Section 24(1) also requires that the remedy be awarded by a competent court with
competent jurisdiction. A court of competent jurisdiction includes: The Superior Court,
Section 96 Courts, Inferior Provincial Trial Courts and Administrative Tribunals that are
granted jurisdiction by statute. For administrative tribunals the basic rule is that if the
tribunals enabling legislation grants them the ability to decide questions of law and Charter
issues have not been expressly removed from the jurisdiction then the tribunal will be
allowed to decide constitutional questions and award remedies under the Charter.

Section 24(1) on the other hand grants the court the authority to award personal remedies.
An instance where you would use Section 24(1) to grant remedy is in an instance where the
provision may be constitutionally valid, but the government acted in a manner that is a
violation of your charter right. It is the government’s implementation of a law that is at issue
and not necessarily the law itself.

Vriend V. Alberta – In their decision the court went into detail in the powers available under
Section 24(1). The court said that Section 24(1) grants them the power to scrutinize the work
of the legislature and the executive, not in the name of the courts but in the interest of a
new social contract. The courts are not to opine on proper policy decisions, rather, the
court’s role is to uphold the constitution and have been given this role by the constitution
itself. The Supreme Court also went through the framework of selecting a remedy under
Section 52 and Section 24.

The First Step: It is to define the extent of the Charter’s inconsistency which must be struck
down. In Vriend that inconsistency was the exclusion of “Sexual Orientation” from the
protected grounds of the IRPA (Individual Rights Protection Act).

The Second Step: Is to determine which remedy is appropriate. The court listed striking
down the legislation, severance of the offending section, striking down or severance with a
temporary suspension of the declaration and validity, reading down and reading in
provisions into the legislation as remedies that are available.

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The court referred to the twin guiding principles that are relevant when determining what
would be an appropriate remedy. These principles are:
1. Respect for the role of the legislature
2. Respect for the purposes of the charter

The court commented that democracy requires that legislature take into account the
interests of both the majority and the minority, for the interests of the minority had been
denied consideration especially when that group has historically been targeted of prejudice
and discrimination judicial intervention is warranted to correct a democratic process that
has acted improperly.

When the courts elect to read in, this is not the end of the legislative process. The legislature
can pass new legislation in response or activate the Section 33 notwithstanding clause which
is the ultimate parliamentary safeguard.

Addressing Issue(s):

1. Whether or not the Charter applies to Toronto Transit Commission (TTC)?

Answer
Toronto Transit Commission (TTC) is overseen by a seven-member Board of Commissioners
who are all city councillors. Section 32(1)(b) of the Charter states: “This Charter applies (b)
to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province”. From Section 32(1)(b) it can be established
that the city councillors of the board for TTC are clearly members of the government.
Making Toronto Transit Commission a government entity in control of the government as it
has government officials dealing with its operations. Therefore, the charter applies to
Toronto Transit Commission (TTC).

2. Whether or not TTC, if applied by the Charter, infringed Jane’s freedom of expression
under the Charter by implementing the “Pleasant Ride” Regulations?

Answer
Jane and her friends on the subway were discussing what they were going to do during their
break from school. When discussing it they said some expletives on the bus. Due to them
speaking these expletives, Sam, the TTC inspector, on the subway issued Jane and her three
friends’ tickets and then escorted them of TTC property at the next subway stop.

Firstly, one would need to determine if what Jane said on the subway was indeed expression
under Section 2(b) of the Charter. In the Irwin Toy Case, they claimed expression to not be
limited to words as an activity can occur verbally, by gestures, or by an action. Expression as
a very broad definition, any activity that conveys or attempts to convey a meaning can be
deemed as expression. It is now established what Jane said was expression.

Secondly, one would need to determine if Jane’s freedom of expression has been violated.
There are intentional limitations and effects-based limitations. Intentional limits can be
broken down into two sub-areas: content based and expression-based restrictions. Content

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based limitations is where the government deals at trying to suppress the content, it mainly
targets the content of the expression. For example, restrictions on hate speech. Expression
based limitations is aimed at some other aspect of the activity (not directed at the content
itself). For example, law against littering.

The fact that TTC enforced a new regulation called “Pleasant Ride” which includes a
prohibition on the use of “words likely to offend”. It is restricting individuals’ rights to
express themselves as they see fit on the subway. Therefore, TTC infringed Jane’s freedom of
expression under the charter by implementing “Pleasant Ride” Regulation.

3. Whether or not TTC, by its actions, intended to limit protected expression or whether its
act had the effect of limiting protected expression?

Answer
TTC saw the need to vigorously enforce the new regulation “Pleasant Ride” so that it can
prohibit the use of “words likely to offend”. There is also no definition in the regulation of
what “words likely to offend” means, and it does not list any particular words. There are
many concerns about that. The fact that they say “words likely to offend” can be subjective,
the fact that expletives are offensive to some people does not mean that they offend all
people. Therefore, it cannot make it “words likely to offend”. The regulation is clearly vague
as there is no specific example to use in relation to it and it is clearly subject and broad. The
fact that they brought the new regulation in response to public complaints about the
increasing lack of civility on public transit, means that they brought the regulation to try and
bring some sense of order which I don’t see to be the purpose at all. It is noted that
provincial legislation is mainly supposed to be narrow and specific, as it is the opposite with
this new regulation. It is used to limit speech on public transit. Therefore TTC, by its actions,
intended to limit protected expression and had the effect of limiting protected expression.

4. Whether or not the Jane’s treaty right of freedom of expression, if infringed, can be
justified under Section 1 of the Charter?

Answer
I would have to use the Oakes Test to determine if Jane’s right of freedom of expression can
be infringed under Section 1. As I determined earlier, Jane’s freedom of expression has been
violated.

Firstly, the government would have to show that they have a pressing and substantial
enough objective for the new regulation. The new regulation “Pleasant Ride” from TTC,
objective is to bring about civility, a more welcoming and safer environment for their
customers on public transit. The government has established this point as it is a pressing and
substantial enough need.

Secondly, the government would have to prove a rational connection between the
regulation and the objective of the regulation. I cannot see any kind of rationality when it
comes to prohibit “words likely to offend”. It is clearly subjective as to what would or could
offend someone as there is no definition when it comes “words likely to offend” in the
regulation and there is no list of particular words. The government does not prove any form

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of rational connection when it comes to prohibit “words likely to offend” to successfully

achieve their objective of bringing about civility and providing a safe environment on public
transit.

Thirdly, the government would have to make sure the regulation minimally impairs the right
or freedom as possible. It can be proved in the scenario that the government (TTC) does not
in any way limit violation of the charter right. It literally does the exact opposite and is on a
full offensive of extinguishing that right on public transit. They did not follow the LIS
principle from Justice Dickson as there would clearly be lots of provisions or regulations that
would be less intrusive than that of the “Pleasant Ride” regulation. The government could
not prove to minimally impair the right or freedom as possible.

Lastly, the government would have to prove that the positive effects of the limit (“Pleasant
Ride”) is proportional to the negative effects. The facts that individuals cannot say what they
would want to say due to the vague nature of the regulation, it would bring a lot of turmoil
to the society, and it would bring about more negative effects and a small number of
positives. The government cannot prove that the positive effect of the limit is proportionate
to the negative effects, as the negative effects would be significantly more.

Therefore, Jane’s treaty right of freedom of expression cannot be justified by the

government under Section 1 of the Charter.

Conclusion:

The likelihood of success of Jane’s case is very high and it would be advisable for her to bring
this matter before a court of competent jurisdiction as they would see the matter in her
favour as it is clear that the government were in violation of her freedom of expression.

(I did not add the remedies part as it was not required to do so in the question)

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