Module 1 part 2

 Passed in 1982, the Charter sets out a broad range

of rights, including equality rights

Canadian  It only applies where there is an element of

Charter of government activity (ex. Legislature passes a new
law)
Rights and
Freedoms  It is “supreme law”—meaning that it can override
any legislation or government action that is
inconsistent with its principles

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 Grant of  Section 1 – “The Canadian Charter of Rights
and Freedoms guarantees the rights and
Rights & freedoms set out in it subject only to such
reasonable limits prescribed by law as
Qualification can be demonstrably justified in a free
and democratic society.”

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  Section 2 – “Everyone has the following

The fundamental freedoms: (a) freedom of

conscience and religion; (b) freedom of
Fundamental thought, belief, opinion and expression,
including freedom of the press and other
Freedoms media of communication; (c) freedom of
peaceful assembly; and (d) freedom of
association.”

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 “Freedoms” vs. “Rights”
 Fundamental Freedoms are basic political liberties required in a democracy. In general, they
guarantee that an individual can act, think, be, or do without government interference unless a law
says otherwise.

 Rights are specific entitlement within several categories directed at ensuring equality amongst
citizens.

 Protection of fundamental freedoms and rights generally imposes negative obligations on the
government. Can also require that government take positive steps, but Court’s don’t like
  Democratic rights – sections 3 to 5
 Mobility rights – section 6

Categories of 


Legal rights – sections 7 to 14
Equality rights – section 15
Rights  Official languages of Canada – sections 16 t
o 22
 Minority language educational rights – secti
on 23

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  A law may be challenged on the basis that
it violates a right or freedom guaranteed
by the Charter

The Charter’s  Infringement of individual rights may be

Effect on Law allowed (s 1) where the infringement is a
“reasonable limit in a free and democratic
society”

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 Example: Equality Rights Challenge

Section 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.”

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.”

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Vriend v Alberta

 Vriend was a teacher at a Christian college in Alberta who had consistently

received positive performance evaluations. When the college found out he was
gay, he was terminated. The Alberta Human Rights Commission did not accept
his claim because sexual orientation was not a protected ground in Alberta’s
human rights legislation.

 Issue: Was the omission of sexual orientation as a prohibited ground of

discrimination in Alberta a violation of s 15 of the Charter and therefore
unconstitutional?

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Vriend v Alberta

 Not every distinction created by legislation gives rise to discrimination. The Court must
determine whether the distinction created by the law results in discrimination.

 Consider first, whether the equality right was denied on the basis of a personal
characteristic enumerated in s. 15(1).

 Second, consider whether that distinction has the effect on the claimant of imposing a
burden, obligation or disadvantage not imposed upon others or of withholding or limiting
access to benefits or advantages which are available to others.

 It has been repeatedly held that identical treatment will not always constitute equal
treatment.
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 The human rights legislation was discriminatory because it did not include a group
who had historically been disadvantaged and discriminated against. It was
underinclusive. (“the exclusion of the ground of sexual orientation, considered in the
context of the social reality of discrimination against gays and lesbians, clearly has a
disproportionate impact on them as opposed to heterosexuals.”)

 The absence of remedies has no real impact on heterosexuals, since they have no
complaints to make concerning sexual orientation.

 The absence of remedies has a real impact on homosexuals, since they are the persons
discriminated against on the basis of sexual orientation.

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 The human rights legislation was discriminatory because it did not include a group
who had historically been disadvantaged and discriminated against. It was
underinclusive. (“the exclusion of the ground of sexual orientation, considered in the
context of the social reality of discrimination against gays and lesbians, clearly has a
disproportionate impact on them as opposed to heterosexuals.”)

 The absence of remedies has no real impact on heterosexuals, since they have no
complaints to make concerning sexual orientation.

 The absence of remedies has a real impact on homosexuals, since they are the persons
discriminated against on the basis of sexual orientation.

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“… I conclude that reading sexual orientation into the impugned provisions of the
IRPA is the most appropriate way of remedying this underinclusive legislation. The
appellants suggest that this remedy should have immediate effect. I agree.”

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Recent Example

 Top v Municipal District of

Foothills No. 31, 2020 ABQB
521
 Foothills County passes bylaw
banning trailer advertising
 Spot Ads Inc. argues the
bylaw is unconstitutional
 Who won?
Statute Law: Jurisdiction and Interpretation
 Judges and members of administrative tribunals interpret legislation while adjudicating cases
 Canada has four levels of court: the Supreme Court of Canada; courts of appeal both on federal and provincial
levels; provincial and territorial superior courts; and provincial and territorial lower courts.
 Each type of court has the jurisdiction to decide specific types of cases.
 Ex. https://www.qp.alberta.ca/documents/Acts/P31.pdf

 Jurisdiction: The authority to interpret legislation is established by the statute; establishes:

 Who can adjudicate
 The issues that can be adjudicated
 The geographic region to which the statute applies
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