Constitution Law Winter 2016

Bruce P. Elman

Table of Contents
15.0 Human Rights at Common Law and Under the Constitution 1867...............................................5
15.1 Introduction.....................................................................................................................................5
15.2 Human Rights at Common Law....................................................................................................5
Re Drummond Wren (1945)..............................................................................................................6
Re Noble and Wolf (1951).................................................................................................................6
Public Sphere.....................................................................................................................................7
Judicial Activism in the 50s..................................................................................................................7
Reference Re: Alberta Statutes (1938)..............................................................................................7
Saumur v. Quebec City (1953)..........................................................................................................8
Switzman v. Elbling (1957)...............................................................................................................8
Unwritten Constitutional Principles......................................................................................................8
Lalonde v. Ontario.............................................................................................................................8
The Canadian Bill of Rights..................................................................................................................8
5 failures of the BOR.............................................................................................................................8
The Canadian Bill of Rights..................................................................................................................9
Human Rights Regimes.........................................................................................................................9
The Canadian Charter of Rights and Freedoms: Roadmap...................................................................9
Conclusion...........................................................................................................................................10
16.0 The Charter: Origins and Interpretations......................................................................................10
16.1 Origins of the Charter...................................................................................................................10
Charter Model......................................................................................................................................11
Rights...................................................................................................................................................11
Enforcement........................................................................................................................................12
Override/Notwithstanding clause........................................................................................................12
16.2 Interpretative Techniques.............................................................................................................12
The Living Tree Principle....................................................................................................................12
The Purposive Approach.....................................................................................................................12
Purpose and Effect...............................................................................................................................13
The Contextual Approach....................................................................................................................13
Edmonton Journal v. Alberta (1989)...............................................................................................13
Thompson Newspapers (1998)........................................................................................................13
16.3 Aids to Interpretation....................................................................................................................14
Internal Aids........................................................................................................................................14
External Aids.......................................................................................................................................14
Comparative Rights.............................................................................................................................14
Charter Litigation................................................................................................................................15
Hypo steps to see if charter applies.................................................................................................15
Role of the courts in the interpretation of the charter..........................................................................15
28.1 Override s.33 of the Charter.............................................................................................................16
Ford v. Canada.................................................................................................................................16
Vriend v. Alberta 1998.....................................................................................................................17
17.0 Application of the Charter................................................................................................................17
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17.1 Introduction...................................................................................................................................17
17.2 Charter and the public private divide.........................................................................................18
Government only (internal).................................................................................................................18
Government only (External)................................................................................................................18
Private action as well...........................................................................................................................19
Dolphin Delivery Ltd. V. RWDSU Local 580 (1986).....................................................................19
Blainey.............................................................................................................................................20
Hill v. Church of Scientology of Toronto........................................................................................20
17.3 Parliament or Legislature: Action and Inaction.........................................................................21
Legislative Inaction.............................................................................................................................21
Dunmore v. Ontario 2001................................................................................................................21
17.4 Government: Actors and Acts......................................................................................................21
Governmental Actors...........................................................................................................................21
McKinney v. University of Guelph (1990)......................................................................................21
Aftermath of McKinney......................................................................................................................23
Government Acts.................................................................................................................................23
Canada Justice v. Khadr 2008 SCC.................................................................................................23
18.0 Justification Section 1.....................................................................................................................24
18.1 Introduction...................................................................................................................................24
18.2 Prescribed by Law.........................................................................................................................24
R v. Therens 1985............................................................................................................................25
R v. Thomsen 1988..........................................................................................................................25
Miracle et al. v. Ontario 2005..........................................................................................................25
Alberta v. Hutterian Brethren of Wilson Colony.............................................................................26
GVTA v. CFS...................................................................................................................................26
Vagueness........................................................................................................................................26
18.3 The Section 1 Framework: The Oakes Test................................................................................27
R v. Oakes 1986...............................................................................................................................27
Dagenais v. CBC.............................................................................................................................28
Edwards Book and Art Shop...........................................................................................................28
Irwin Toy v. Quebec........................................................................................................................28
R v. Chaulk......................................................................................................................................28
Thompson Newspapers v. Canada...................................................................................................28
Vagueness............................................................................................................................................29
Over-breadth........................................................................................................................................29
R v. Hall (2002)...............................................................................................................................29
19.0 Freedom of Conscience and Religion...............................................................................................30
19.1 Introduction...................................................................................................................................30
19.2 Sunday Closing Laws....................................................................................................................30
Robertson v. Rosetanni (1963)........................................................................................................30
R. v. Big M Drug Mart (1985).........................................................................................................30
R v. Edwards Books and Art Ltd (1986).........................................................................................31
19.3 Education........................................................................................................................................31
Adler v. Ontario (1996)...................................................................................................................32
Zylberberg v. Sudbury Board of Education (1988).........................................................................32
S.L. and D.J. v. Commission Scolaire des Chenes..........................................................................32
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Loyola High School v. Quebec........................................................................................................33

TWU v. BCCT.................................................................................................................................33
19.4 Personal Decisions.........................................................................................................................33
R v. Morgentaler (1988)..................................................................................................................33
B. (R.) v. Childrens Aid Society of Metro Toronto (1995).............................................................34
A.C. v. Manitoba.............................................................................................................................34
Bruker v. Marcovitz.........................................................................................................................35
Syndicat Northcrest v. Amselem (2004)..........................................................................................36
20.0 Freedom of Expression......................................................................................................................37
20.05 Conceptual Summary for Freedom of Expression...................................................................37
20.1 Introduction...................................................................................................................................38
20.2 Purposes of Freedom of Expression.............................................................................................38
20.3 Definition of Freedom of Expression...........................................................................................38
Irwin Toy v. Quebec (1989).............................................................................................................38
20.4 Regulating the Content of Expression.........................................................................................39
1) Hate Propaganda.............................................................................................................................39
R v. Keegstra (1990)........................................................................................................................40
R v. Zundel (1996)...........................................................................................................................41
Difficulties in getting criminal prosecutions with hate speech........................................................41
SHRC v. Whatcott...........................................................................................................................42
2) Pornography....................................................................................................................................43
Butler v. The Queen (1992).............................................................................................................43
Little Sisters Book Emporium.........................................................................................................44
R v. Sharpe (2001)...........................................................................................................................44
3) Commercial Expression..................................................................................................................45
Canada v. JTI-MacDonald...............................................................................................................45
20.5 Restrictions on the Form of Expression......................................................................................45
Montreal v. 2952-1366 Quebec Inc.................................................................................................45
GVTA v. CFS-BC Component and BCTF.......................................................................................46
Baier v. Alberta................................................................................................................................47

15.0 Human Rights at Common Law and Under the Constitution 1867
15.1 Introduction

No charter of rights contained in Canadian Constitution until 1982 nothing that absolutely
limited government actions in favour of individual rights
o

Constitution Act 1867 made no direct references to human rights

In 1982 Bill of Rights becomes part of supreme law of Canada

Underlying principle of interpretation is to avoid burdening the individual unless statute

expressly demands it

Interpret the Criminal Code strictly principle that favours human rights

Empowered courts to uphold individual rights against government infringement through

legislation

Seems like radical, fundamental change but Charter only builds on traditions that are
deeply rooted

4 phases of human rights

o

Human rights at common law

The implied Bill of Rights in Constitution Act 1867

Unwritten constitutional principles

Canadian Bill of Rights 1960

15.2 Human Rights at Common Law

Two fundamental principles keeping each other in check (Walk, reconciling parliamentary sovereignty
with rule of law)
o 1) Parliamentary/Legislatures Supremacy/sovereignt : Parliament can make any law it chooses. The
bill of Rights 1689 Supremacy over Monarch. Parliamentary could make or unmake any law they
chose for whatever reason they decided to do it. (The parliament of Canada and the provincial
legislatures; major point in the development of democracy as the parliament became supreme over the
monarchy)
o 2) The Rule of Law: opposite of Parliamentary Supremacy, the laws of the Constitution are not the
source but the consequences of individual rights defined by the courts (Dicey). Exercise of state power
must be authorized by clear rules of positive law. The theory is that unless there is express authorization

for state or government action in written law, the default is for individual liberties. In contrast,
individuals do not need express authorization to carry out liberties in written principles. So for state
action to happen, it needs to be expressly stated in the written and positive law to deny or limit the
individual because if it is not written than the State does not have the authorization to deny or limit
individual liberties.
A.V. Diceys Three Principles of the Rule of Law:
Supremacy of regular law as opposed to arbitrary power;
Equality before the law;
Rights are defined and enforced by the courts
The Rule of Law in the Modern State (H.W. Jones):
o Unthinkable that Govt possesses arbitrary power over persons or interests of the individual;
o All members of society are equally responsible before the law;
o Effective judicial remedies are more important abstract constitutional declarations.

Brief Rule of Law Cases:

1. Roncarelli v. Duplessis (1959): person had right to have liquor license, unless express authorization that
enabled the government to take it away.
2. Reference re Secession of Quebec: balance between Parliamentary sovereignty and rule of law
3. Baker v. Canada (Minister of Citizenship and Immigration 1999) (page 735): granting an alien status on
compassionate grounds based on his Canadian citizen children. In this case the court HELD: that the refusal
by the minister to exercise a statutory discretion to grant an illegal immigrant exemption form a deportation
order of humanitarian and compassionate grounds was declared void because inter alia (among other things)
the decision was made w/o giving any right to the best interests of the Canadian born children of the
claimant where there is a contest b/w state law and liberties, the common law assumes that there has to be
authorization (i.e. Some statute or other positive law) for the exercise of power of the state). Rule of law can
overturn decisions. Dube cites Roncareiil as rule of law being fundamental principle that allows one to
overturn legislation (Elman disagrees).

More specific rights at Common Law Some taken from England

Trial by Jury: purpose was so that judges appointed by the state could not put you away. You had
protection from arbitrary imprisonment.

Impartiality of Judge and Jury: (and to a lesser extent, the independence of the civil service)

Habeas Corpus: Right to know the basis of law, protects against wrongful imprisonment- show me the
body cant hold someone arbitrarily.

Presumption of Innocence (proof beyond a reasonable doubt): Courts must prove guilt of the accused
beyond a reasonable doubt (Wolmington Case)

Due Process/ Principles of Natural Justice: admin law term right to cross-examine, right to be heard,
etc.

Principle of Legality: encompasses four ideaslaw must be accessible, law must be certain, law cannot
be retroactive, law should be constructed strictly in favor of the liberty of the subject.

Fair Comment Defense in Defamation: protection of freedom of expression. important protection in the
freedom of speech (mayor of Windsor does not sue everyone that says something bad about him because
there is this right of fair comment.)
Natural Justice: fair procedure must be used before planning limitations on rights

Private Sphere
Facts

Issue
Reasoning
Holding

Comments

Facts
Issue
Reasoning

Holding

Re Drummond Wren (1945)

Bought land where covenant says cannot be sold to Jews or objectionable
nationality
Is covenant against public policy?
Signatory of San Fran Charter of the UN (against discrimination)
Yes, void because of public policy. Offensive to public policy.
Restrictive covenants that are against public policy are null and void. We need
national unity and rebel immoral actions.
Example of human rights at common law pre-charter
Shows there was a moral duty San Fran Charter = universal respect for human
rights (article 1 & 55 particularly)

Re Noble and Wolf (1951)

Another restrictive Jewish, Black, etc. covenant
Is the covenant against public policy?
Yes. Covenant will not apply where it is restrictive/unfair posing a restrain on
alienation. Will not be considered valid.
When it comes to private relations, statutory human rights provisions prevail over
common law principles.
Due to language uncertainty, the contract is void because uncertain in how to
measure the bloodline of races.

Public Sphere

Martin v. LSBC
o Not allowed to be member of bar because he was Marxist
o Freedom of expression cannot be given to Marxists to poison the minds and destroy our constitution.
Freedom like fire, is a real thing with positive consequences

Specific rights under the Constitution Act:

o

Election of House of Commons Every 5 years (s. 50)

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o
o

o
o

Annual Session of Parliament (s. 20)

Judicial Independence (ss. 96 100) - one hallmark of this is a certainty of salary (certainty and fixed) so
that the government could not decrease some judges salaries just because they are not liked; another
hallmark is that they cannot be removed unless for bad behavior and as only addressed by the senate and
the house of commons
these are guaranteed by s. 96-100
Right to Denominational Schools (s. 93) - real right that people want to exercise which guarantee both
catholic and protestant students.

Use of French/English in Parliament and Legislatures of Quebec and Manitoba

Laws of Federal Govt, Quebec and Manitoba to be published in French/English (s. 133)

o
o

Human Rights under Constitution Act 1867

Division of powers
Implied Bill of Rights
Extreme: applies to parliament and provincial
Limited: applies to province only

Judicial Activism in the 50s

Decade of judicial activism for many reasons Nuremberg trials, Canadian war trials, spawned
international human rights movement.

Rise of social credit party, Quebec leaning union national (two regimes marching to their own beat)

Two ways it was done: 91/92 separation, implied bill of rights

Reference Re: Alberta Statutes (1938)
Facts
Alberta Social Credit to manage economy, made it illegal to comment on these
principles in the news. Controlled how media reported the social credit policies.
Issue
Are the protection of these rights (social credits) ultra vires?
Reasoning
The Implied Bill of Rights Theory Question: an implied right is to free speech and
open debate; democracy is fundamental to the parliament; this is found in the
preamble of the constitution- adopt UK freedom of expression.
Holding
Yes, Ultra Vires
Function

Saumur v. Quebec City (1953)

Implied Bill of Rights Analysis: freedom of expression is an original freedom
similar to above- arises out of pre-amble in which freedom of religion etc is
included
Looked at affect of bylaw and stated that is is related to matters outside religion, but
that the religious aspect is so integrated it cannot be severed. Rendered bylaw valid.

Function

Switzman v. Elbling (1957)

Implied Bill of Rights: Canada is a democratic state-need free exchange of ideas
its extreme form, the implied bill or rights constrains the authority of both
Parliament and the provincial legislates; in its limited form it constrains provincial
legislative authority only (Justice Abette in Switman)

Unwritten Constitutional Principles

Lalonde v. Ontario
Unwritten constitutional norms may in certain circumstances provide the basis for
judicial review of discretionary decisions. They offered no justification for closing
hospital for the minorities and said matter was beyond its mandate, this is wrong.
Unwritten constitutional norms can have normative legal force
Unwritten constitutional principles stem from preamble of Constitution. The four principles have human
rights elements to them.
Beginning in 1980s new SCC (e.g. Dickson in 1984 appointed)

Function

The Canadian Bill of Rights see appendix for BOR

BOR without amending the Constitution

Political and social pressure

Quasi-constitutional

Provided a blueprint for provincially enacted BOR

5 failures of the BOR
(1)
it was never entrenched: there was never a special formula created for it. The Charter requires certain
type of amendment process, Canadian bill of rights didnt have that, it was effectively just a statute of the
government of Canada. This theoretically didnt have to be fatal, as we saw some courts were able to
construct right protections from common law or implied bill of laws, so the fact that it wasnt entrenched
didnt have to be fatal. But it did create attitudes towards it within the Courts.
(2)
It never applied to the provinces. As we know a lot of the problems at the time, or perceived problems
with denial of human rights were denials by particular governments. The fact that it did not apply to the
provinces was a serious hold in its potential.
(3)
No enforcement provision: There was no remedy provision. So there was no express section, which
directed the court as to what to do if they found a denial of rights that were protected under the Canadian Bill
of Rights.
(4)
Restrictive drafting: Frozen rights theory: no new rights. For example: freedom of religion as it was
known in 1960, not as it might have developed in 2015 or anytime in between.
(5)
Narrowly interpreted: If you look at the freedoms and section 2 rights and compare it to the Charter
rights, the rights in the bill of rights was very narrowly construed.
a. Essentially: Narrowly Interpreted, Not Entrenched, Not applicable to provinces, Restrictive drafting, No
enforcement provisions
The Canadian Bill of Rights

Robertson and Rosetanni v. The Queen 1963: Sunday closing day laws. Bowling ally in Hamilton and they
want to keep it open on Sunday. The Lords Day Act prevented them from doing this and hence was a

violation of Canadian bill of rights 1c. They Challenge Act based on CBOR. Judges disagree with them. Say
that CBOR is not concerned with HR and fundamental freedoms in any broad sense, and only concerned with
freedoms that existed before the bill. It does not mean you have right to be open on Sundays as in opposition
to the Lords day act. Its not a religious problem its an economic problem.

The Queen v. Drybones (1970): provision in Indian Act, which prohibited Indians from being drunk off the
reserve. Court was appalled by the law and said inoperative b/c did not provide native people with same
equality rights as non-native. Considered huge break in native jurisprudence for HR. [high point of Canadian
bill of rights].

Brownridge v. The Queen (1972): guy stopped for drunk driving, taken to station, asked for breathilizer, guy
refused until had counsel, the police say blow or will charge with refusal to blow. He doesnt blow and they
charge with refusal. Court says wait a second he asked for counsel and should not have been denied this. The
court focused on particular provision from criminal code, without reasonable excuse, denies to use
breathalyzer they said he had a reasonable accuse.

A.G. Canada v. Lavell; Isaac v. Bedard (1973): 12oneBwomen Indian women who married nonIndian women. Deals with the fact that under the Indian Act at the time Indian women who married white
men lost their status as Indians but Indian men who married white women did not loose their status and the
women gained status. This is clearly discriminatory and provide unequal treatment. The court says it does
not violate the CBOR.

Hogan v. The Queen (1975): stopped because thought intoxicated and police asked for breath, guy says
wants lawyer, police threaten to charge with refusal so he gives breath, it is over limit, he is charged. Goes to
court and says that he was denied his right to counsel. Court says that Brownridge does not apply because
there was no reasonable excuse here, and the fact that he gave the evidence, and this was before they said this
kind of evidence would be excluded. It was okay to obtain evidence illegally it would be admitted if relevant.

A.G. Canada v. Canard (1976): About who becomes administrators for Indians who die without wills. The
federal government did this and they had freedom to appoint people not related and not in band. This was
discriminatory b/c white people could name their own administrators. The courts said not violate CBOR

It was the disappointment of the Canadian Bill of Rights that promoted advocates to seek out a Charter
entrenched

Human Rights Regimes

The Canadian Charter of Rights and Freedoms:

Roadmap

- Provincial Human Rights Codes

- Privacy Acts
- Freedom of Information Acts
- Ombudsman Acts
- Auditor General
- Disability Acts

- 1968 White paper: A Canadian Charter of Human

Rights
- 1969 The Constitution and the People of Canada
- 1971 The Victoria Charter
- 1972 The Molgat/McGuigan Report
- 1976 Trudeaus Threat of Unilateral Patriation

10

- 1976 - Election of Parti Quebecois

- 1978 - Bill C-60: A Time for Action
- 1978/79 First Ministers Conferences
- 1979 Pepin/Robarts Commission on National Unit
- 1979 Trudeau Defeated
- 1980 Trudeau Re-Elected
- 1980 The Quebec Referendum: The No Forces
Win
- 1981 The Patriation Reference
- 1981 - Final Agreement
- 1982 The Charter is Becomes Law
Smith v. Minister of Employment and Immigration (1985)

Relevance in BOR after charter. Beetz, Etsey, McIntyre preferred to declare law inoperative per section
2(e) of the BOR. BOR retains all its force and effect, particularly where there are benefits to be found where
there are none in the charter.
Authorson v. Canada (2003)

Due process rights respecting property that existed in 1960 in the BOR do not exist today. Due process
cannot interfere with legislative right to determine its own procedure.

Courts cannot compel Parliament to change its legislative procedure. Aside from requirements for notice
and opportunity to make submissions, BOR provides for due process only in individualized adjudicative
setting, which is not the case here. It also does not demand that Parliament provide a hearing before enacting
law. Parliament retains right to expropriate property if it made its intentions clear.
Conclusion

Professor David Mullan says not much difference to extent of protection granted in pre-Charter and postCharter days

Complex web of common law, statutory, written and unwritten principles exist alongside the Charter as
protection for human rights and freedoms

Humans rights cause in Canada is strengthened by acknowledging the importance of the principles as
seen in pre-Charter and non-Charter manifestations

16.0 The Charter: Origins and Interpretations

16.1 Origins of the Charter

11

Why the Charter mattered

Because it specifically empowers courts to strike down or fix laws which conflict with rights and
freedoms

Before 1982, judges occasionally remedied violations

o

Re Drummond Wren

Re Alberta Statutes

Switzman

But not always, per Noble

The 1960 Bill of Rights had little or no impact

o

It was an ordinary federal statute

It did not instruct or empower judges to remedy violations

The Charter is entrenched it applies to both levels of government, and it orders judges to
remedy violations

Charter Model

Give and take between groups

Balance rights of individuals with the society

s. 1 is the justification of limitation clause: very important for the balance of human rights protection
Bargain here is that we will protect rights while also allowing for some consideration of parliamentary
supremacy via s.1 and s.33 (overriding clause-override the right to some social policy; there are
limitations built in the override so that there is a political price to play when you invoke the override)
Litigation model does not include an override; deals with rights, limitations, and enforcement. This is
important because one of the failures of the Bill of Rights is that it did not have an enforcement
provision so when they formed the Charter, they were sure to include an enforcement provision
Important b/c one of the failings of the CBOR was a lack of an enforcement policy

Constitutional building by the kitchen sink approach if a group wanted in, they got in. e.g. deaf/blind
persons.
Lorraine Winerib Rights Limitations and Override

12

o Simple & accessible. Domestically produced limitation clause. Override provisions. [Elman include
meaningful enforcement]
Elman sees it as: Rights, Limitations, Enforcement Override

Rights = First stage is that you have a Plaintiff/person claiming that their rights were violated
(could be the plaintiff or the defendant as long as they claim that their rights were violated)

Limitations or Justification = Second stage is that you have to prove the violation of the
right (burden of proof is on the plaintiff to prove that their right was infringed on and then the
burden shifts to the Crown to prove that the right that was infringed on was a limitation
allowed in a free and democratic society)

Enforcement = Third stage, three enforcement clauses: s.24(1), general principle, 24(2)
enforcement of exclusion of evidence, s.52(1) this is the only of the three that is mandatory

Override s.33, s.1 buy government or judiciary

Were concerned with state neutrality with religion

Parliament/provincial legislatures used to be supreme, until Charter [however s.1 is a severe limitation
justification/reasonable in free and democratic society]

Rights

Fundamental Rights (Freedoms) s. 2

Democratic Rights ss. 3 5

Mobility Rights s. 6 dont want provinces putting up barriers to the mobility of individuals.

Legal Rights ss. 7 14

Equality Rights s. 15

Language Rights s. 16 22 group rights

Minority Language Education Rights s. 23

o Generally, all rights are very expansive
Limitation or Justification: s. 1

important element of balance between idea of individual rights and Parliamentary sovereignty
Formula: Rights can be limited where they are reasonable, prescribed by law which are justified in a
democratic society (R v. Oakes interpretation of section 1: almost statutory 4 part test: Purpose, 3 part
Proportionality) etc.

advances the rule of law

provides substantive norm for when government can limit rights

its domestically created,

13

its sensitive to parliamentary supremacy one of the methods used to ensure that there is some

attention being paid to the will of the people

both a guarantee of rights (guarantees all rights as stated herein) and a limitation (subject to such
limits as expressed in a free and democratic society)

Enforcement

S.24(1) general remedies provision

S.24(2) deals with evidence and the exclusion of it

S.52 laws must be in like with constitution or they have no effect

Override/Notwithstanding clause

S.33 last provisions. Domestic non-reviewable, non-emergency override. Only was court can review is
as to matter and form, not as if its a good idea to override a right in situation. This is about political
balancing, has to be renewed every 5 years.

If s.1 fails, then you can use this override

About political balancing and parliamentary supremacy

Only applies to s.2, 7-15 are theses of lesser importance? Elman thinks no.

16.2 Interpretative Techniques

The Living Tree Principle

Applies to charter

Edwards v. AG Canada (1929)

o Real life to living tree was giving to it when the Charter came into play
o Not really until 1982, that people brought back the living tree and give it some force

Hunter v. Southam
o Statute defines present rights and actions that are trying to fix a problem; while constitution is drafter
with an eye to the future and deeply fundamental
The Purposive Approach

Applies to charter

Hunter and Southam (1984)

o What is the purpose behind Charter provisions purposive approach
o Look at purpose of provision and purpose of offending act. What is the underlying purpose of the right
and purpose of the charter (protect and guarantee certain rights within limits)
o Can be used with other doctrines such as living tree
o Look not at legislative intent, but rather a meaning that will secure over time the full extent of the charters
protection. Interpreted with eye to the future.
1. Look at the document: the other rights surrounding it
2. The Preamble
3. The Character and larger objects of the Charter: fundamental freedoms, rights surrounding criminal process
4. International treaties

14

5. The unwritten principles

6. Look at the developments of these concepts
o

Big M Drug Mart

o Dickson expands on this idea
o The interpretation should be a generous rather than a legalistic one, aimed at fulfilling the purpose of the
guarantee and securing for individuals the benefit of the Charters protection
o Wilson: you only need to look effects thats what affects the people, shes not interested in the higher
principle. She says its an effect-oriented document and the burden is too high on people to secure their
rights if they have look to the purpose first

Dickson: you have to look at purpose, cant save something that has unconstitutional purpose; Wilson:
you have to look at effect, cant save something with unconstitutional effect. [look at both in exam]
Purpose and Effect

Applies to law being challenged

Big M Drug Mart

o About particular provision, not looking for purpose underlying section of charter
o About legislation being challenged. Dickson says we look at purpose of legislation (if constitutional) then
see if there are any constitutional effects.
o No shifting purposes; constitutional effects cant save an unconstitutional purpose.
o Test: look at purpose, if unconstitutional stop, if not then go to effect analysis.
The Contextual Approach

Applies to s.1

Aimed specifically at s.1. Look at rights in context, rights are not absolute. In particular setting, what are
these rights trying/attempting to do.

Rights have different values in different contexts

Abstract approach: does not place heavy emphasis on context of the case, and analyzed the importance of
competing values AT LARGE.
Edmonton Journal v. Alberta (1989)
o Have to look at rights in context of current situation. Not abstract.
o Rights are different in different contexts. Cant evaluate in abstract, have to look at it in the particular
case or area of law.
o Approach to s.1
Right or freedom may have different meanings in different contexts subject to change. Contextual
approach is necessary to determine which competing value should yield to the other. All stages of the
Oakes test should be considered contextually. Value of this approach is to recognize that some
rights/freedoms have different values when placed in different contexts. It is more sensitive to reality
of the case at hand and more conducive to finding a fair compromise between competing values.
Wilson: brings the charter right or freedom to the actual case at hand, instead of talking about freedom
of expression as larger context, she talks about it in the understanding as protecting the open court
principle.
Thompson Newspapers (1998)
o Objective of legislation was to ensure elections were fair

15

Have to look at objective and the underlying value and determine whether the infringement was
reasonable, the court adds that extra factor about contextualizing. Look at the environment where the
freedom is being infringed.
o Not reasonable limit
o Purpose of contextual approach is to allow courts to weigh the value of the speech with the
reasonableness of the limitation. Look at the situation, look at the values, look at the objective.
o Political speech is central to the core.
There is no high value v. low value speech, or equality, but because of s.1 we can easier justify a
limit if we find a particular activity is far from the core of what is being protected by the right e.g.
hate propaganda far from core. Doesnt take much to limit under s.1.
o

16.3 Aids to Interpretation

Look at rights from perspective of rights holder, not from government perspective
Charter protects pre-existing rights
How far do we go when we are talking about government? Teachers, should they read us rights? What
about the bouncer of the bar who is arresting someone, are they government? Question becomes who is
government.

Internal Aids

French and English text were developed independently of each other

S.24(2) English: admission of evidence of proceeding would bring administration into disrepute,
French version says: capable of or could.
o So we go with the French test, because more in favor of charter applicant

Preamble, Headings, Marginal notes help interpretation

External Aids

As for aids existing outside the Charter, a court may find further guidance as to the meaning of the
Charters guarantees by reference to the documents origins, although the weight attributed to these sources
rests at the discretion of the court.

The minutes of the parliamentary record concerning the Charters adoption may serve as an extrinsic aid
to interpretation, as may a desire to reconcile the Charter with the continued protection of other statutory and
common law rights in Canada, given the express protection extended to these rights by sections 25 and 26.

The Canadian Bill Rights may also exist if only to provide confirmation that the Charter was intended to
be a distinctively different instrument from the Bill of Rights given the latters far from robust record in rights
protection (although responsibility for this must certainly be shared by the Canadian judiciary).

Comparative Rights

Interpretative guidance may also be found in comparative foreign law sources, bill of rights decisions,
American constitutional decisions

16

Given the similarities in may commonwealth constitutions, it is not surprising that comparative
constitutional law should provide a source of interpretative assistance of the Charter. However, one foreign
source with which the Canadian courts have been cautious is the American Bill of rights, which, while useful
in the early days of Charter interpretation, has nevertheless been recognized as having a much different
structure than its much younger Canadian counterpart.

International law may also serve as an aid to Charter interpretation, particularly since in Canada in
contrast to the US, the adoption of a domestic bill of rights followed, rather than preceded, the adoption of
many international treaties for the protection of human rights. The consideration of these treaties can assist
the court in the interpretation of similar domestic guarantees.

Charter Litigation

Stage 1: does the charter apply? S.32, Dolphin, McKinnley, GVTA etc.

Stage 2: Has there been a violation of a Right?

o

Must prove there is a right, and fact supports idea it has been violated. Obligation of party
alleging breach of charter. If not justified what remedies should be given?

Up to applicant to prove violation. Must prove what alleging has happened/included in

rights in any particular section

Stage 3: If so, is the violation (denial, infringement, limitation) justified as a reasonable limit in a
free and democratic society?
o
o

Prove prima facie, not beyond reasonable doubt

This burden is on the government, or whoever is alleging that the limitation is reasonable.
E.g. this could be government of Germany if they are extraditing. Balance of probabilities.
This is the oakes test, as modified by chalks, desjardins etc.
Stage 4: If not, should a remedy be granted and, if so, which remedy?

Hypo steps to see if charter applies

1.

Does the Charter Apply (section 32)

2. Has there been a violation of a right? (Just need to show that there is a prima facie case): Applies to
all rights in charter (burden on the individual on BOP)

17

3.

If so, is the violation (denial, infringement limitation) justified as a reasonable limit in a free and
democratic society (on the civil standard, the balance of probabilities on AG): Applies to section 1 of the
Charter

4.

If not, should a remedy be granted and if so which remedy?: Remedies are some what discretionary;
Applies to ss. 24(1)(2) and 52; Section 24 onus on person bringing claim on balance of probabilities; burden
on the individual

Role of the courts in the interpretation of the charter

o

Formalism: the moral (Protecting rights), political (Enforcing Democracy), and legal (The
Intent of the Framers and the Legal Process) justifications. Court is there to judge disputes.

Petter et al: The Anti-Majoritarian Objection: decisions are being made by unelected
judges, this is fundamentally undemocratic, the damage of the Charter needs to be limited. Doesnt like idea
un-elected judges are overruling legislatures. Wants to see rights protected through democratic process not
courts.

Hogg et al: The Dialogue Theory there is a dialogue theory between Parliament and the
Court. Parliament suggests a law, someone challenges it, if court believes its unconstitutional, they send it back,
Parliament tries its best to comply, then it comes back to court, if is is satisfied court upholds it, if not it is sent
back to Parliament again. Dialogue between legislatures and courts.

Roach: Dialogue Plus: has some protection where judicial review would operate without
any dialogue and you take rights seriously and protect minorities. Dialogue between courts and legislatures but
some things are not apart of that dialogue. Venerable minorities (courts have to be aware); providing
individuals with procedural rights to challenge state action; human dignity and ensure participation by all in
Canadian society. Roll for legislatures for limiting rights but somethings they should not be able to do

How did we manage to become a country and a society, which embraced judicial review?

Hoggs Rationalization: Weak Judicial review

Elmans PPP: Principle Process, and Personnel courts have always been striking down laws, but have
been doing it through the guise of federalism. Striking laws down to protect rights through federalism.
Personnel changed in 1984 (SCC Judges - Dickson), new people came on and were more open to judicial
enforcement under the charter.

Gardbaum: The Problem is with the Legislative and Executive Branches deals with breakdown of
legislative bodies. Societies become much more interested in judicial review if there are serious problems with
their legislative and executive bodies. Senate is so weak, courts came in to fill the void and act as oversight to
legislatures, as the other part of the bi-cameral legislative system. Elman doesnt necessarily agree.

18

28.1 Override s.33 of the Charter

Not used for state of war or invasion normal legislative action

Not reviewable, just by judiciary. Declaration lasts for 5 years generally cycle of elections federally
and provincially. Can have reenactments of override, but must come up publically, and undergo public
scrutiny. Politicians/governments pay at the polls
o Judicial review is form not substance
Can only use for each legislature or parliament in jurisdiction
o E.g. Province cant use it in the federal government to take out criminal code
Measure to keep legislation alive
Have to override it with regard to something specific
o E.g. hate propaganda was struck down for freedom of expression, government could say
notwithstanding the judiciarys decision, we are using s.33 to re-establish it
Purpose: democratically elected actors to overrule judicial decisions. Immunizes certain things in the
charter.
Have to expressly declare intention to override charter with regards to some law in the law itself (must be
in the statute)
Not necessary to exempt entire statute, can do section or applicable sections (only applies to s.2, s.7-15 of
Charter) this does not create a hierarchy of rights.
Real review takes place in electorate. Judges only review substance.
Never invoked federally, rarely provincially (twice in Quebec). Thats it.

Facts

Issue
Reasoning

Holding

Facts

Issue

Ford v. Canada
One override that commands advertising to be in French only and one override that
states that there should be a French equivalent to names used in commercial
advertising.
Can u revoke the override retroactively?
Cannot override something retrospectively. Prospectively you can. If violation of
Quebec language that occurred prior to the override being invoked, cant go back
and scoop up the behavior, can only move forward
(1) The terms of s. 33 do not contain such a requirement.
(2) Parliament or the Legislature may not be in a position to discern which sections
of the Charter need to be overridden.
(3) Therefore, Parliament or the Legislature must be permitted to identify more that
one right or indeed all of them. Therefore, the s. 52 override is valid.
Retroactivity is not valid.
Once s.33 invoked, beyond judicial scrutiny.
Vriend v. Alberta 1998
Teacher was openly gay, and was fired
Went to AB Human Rights Commission. Statue in Alberta did not provide for sexual
orientation for prohibitive ground of discrimination, said he was out of luck.
Can legislative omission be the subject of a Charter violation?
19

Reasoning

Holding

Elman view

Yes, legislation omission can be subject of Charter violation. Cant violate equality
rights. Language of s.32 does not limit court to interpreting positive acts of the
government only.
They excluded sexual orientation.
Justice Iccabucci, read into the act, sexual orientation under the individual rights and
protection act. Bold move, he re-wrote the law essentially. This is serious judicial
activism.
Determining an omission as wrongful violation of Charter rights does not mean the
court is overstepping its role into legislature. Charter gave each Canadian rights
which no government or judiciary could take away. Where disputes arise as to
justifiable limits of those rights, the courts are the appropriate party to resolve the
dispute. Section 52 (remedies) of the Charter specifically assigns an interpretive role
to the court to declare unconstitutional legislation invalid. Courts are arbiters and
trustees for the Constitution, not for the judiciary. Courts are required to uphold the
Constitution, and are invited to play that role by the document itself. Dialogue
between courts and legislature is extension of democracy.
Alberta did not invoke the override because override was invoked regarding the
serialization settlements, HUGE outcry against government for invoking the
override. Criticism was so severe from various sources, so removed that clause. Due
to this, did not want to go through it again and invoke the override. Canadians see
the invoking of override very seriously.
Public was so invested in charter that government using override was doing so at its
peril.

17.0 Application of the Charter

Section 32 This Charter applies
A.

To the Parliament and government of Canada in respect of all matters within the authority of Parliament
and

B.

To the legislature and government of each province in respect of all matters within the authority of the
legislature of each province
Question 1: Government only or private activity as well? Only government.
This raises an issue of principle: Will we see the Charter as an instrument of vertical integration/effect, or
horizontal affect? Do we see rights documents as between the govt and people, or person to person? Do we
think intent was to include private action in Charter?
Question 2: If government only, what is government? (see Dolphin, McKinnley, GVTA)

20

17.1 Introduction

Applies to any person at law, whether natural or corporate. Have to read rights. Phrases like everyone
applies to any entity, but have to make sure its a right that you can peruse (e.g. corporations having right to
life is a stretch). But look at Big M, that was corporation religious freedom.
Fetus do not apply so s.7.
Who has the benefits of the rights?
o Section 2: everyone has the following fundamental freedom,
o Section 3: Every citizen of Canada [this precludes others]
section 6(1): every citizen of Canada has right to remain and re-enter in Canada (the right to
livelihood and moving is given to not only citizens but people with permanent residence as well).
o Section 10: Everyone on arrest of detention
o Section 11: Any person charged: criminal and penal matters, doesnt necessarily mean you have to
be charged with a federal criminal code, you can raise Charter even if its not federal criminal charge
o Section 13/14: A Party or witness
o Section 15: Every individual: designed to be exclusive to natural persons (we didnt want
corporations coming in and claiming equality rights).

17.2 Charter and the public private divide

In order to find the answer to the above question we can look at internal sources: (1) the section itself (2) other
sections (3) legislative history; external sources: (1) special joint committee (2) other constitutional instruments
(3) basic doctrines of constitutional law
Government only (internal)

Plain Meaning of Section 32(1): Government: it specifically says it applies to Parliament and
Government.

Heading & Marginal Note: application of the Charter, and this is what the marginal notes say

Section 24(2): Administration of Justice

Section 1: Prescribed by Law

it appears full model of charter was designed to apply to government, not to private actors
21

Plain meaning: doesnt say government in action etc. its just the plain meaning of government

Heading: no other section talks about the application of the charter, it is only in this section

s.24 (2) = this is about the exclusion of evidence when the administration of justice is brought into
dispute

Government only (External)

Legislative History: and to/ in respect of: the words with respect to was not there previously
Originally: and to is an indication that they expected it to apply beyond government in all jurisdiction
with in 91 and 92 which would be everywhere (and to = would have included all actions)
Changed to: in respect of gives us the idea that the goal was to limit it to the parliament and government
of Canada in respect to matters within their jurisdiction (in respect of = limiting the scope)
it seems pretty clear if the and to was left in, it could easily be read to include private actors and it could
apply to everything in entire country (would have been too broad) and hence, it was changed to in respect of.

Special Joint Committee

Some Rights Can Only Be Granted By Government

rights i.e. the right to vote cant be given by citizens, run for parliament, etc;

Constitutions Usually Apply Only to Government

We are interested in the vertical application of the Constitution, state and the citizens

Usurp Human Rights Regimes/Torts System

If the Charter applied to private and public it would usurp HR regimes and the tort system

Statutes generally dont apply to the crown, unless otherwise explicitly said that it does apply

Private action as well

Statutes Do Not Generally Apply to the Crown Unless Stated (Section 32 was put in: Abundance
of Caution, so that the government was not excluded)
They argued that the Charter would apply to private action and the word government was put in not to
exclude private but to ensure that government was include

Word Only is not included in Section 32(1)

They argue that if the intention was to limit the application to government they would have sued the word
only. Putting only would have only applied to government

22

Formulation of Rights: Sections 2,7, & 8

They said it is true that some rights look like they can only be given to you by government but there are
also other rights that can be given in the private sector i.e. Corporation will say you cant bad mouth company,
but this is a limitation of freedom of expression but there is no protection under Charter from private
corporations.

American Bill of Rights: Clearer Wording excluding Private Actions, e.g.Congress (Art. 1)
Looks at American Bill of Rights: clearer wording excluding private actors e.g. congress shall make no
law

Simple Equity: Should Rights be Dependant upon the Party Violating those Rights?

Function

Issue
Reasoning

Holding

Dolphin Delivery Ltd. V. RWDSU Local 580 (1986)

Foundational case if Charter applies to Government action and/or private action only
government action (has been expanded by other cases e.g. GVTA)
Charter applies to common law BUT NOT private action
Judges are bound to the Charter if dont follow Charter, you can appeal
Does the charter apply to private parties?
Charter does not apply to a dispute between two private nongovernmental parties; however,
the common law ought to be developed in a manner consistent with the Charter values.
Charter applies to common law, but not between parties. Common law should be developed
in a way consistent with Charter values. BUT does not apply to private parties.
Charter only applies to government, need government action. Charter applies to government
and only applies to private action where you can find some governmental action to it.
A direct connection between the element of government action and the claim advanced must
be present before the charter applies.
Once u have s.52(1) all law is subject to the charter, even common law.
Charter does not apply to purely private disputes, unless government element involved *See
Blainey*
decides that it does not apply to private litigation, as s.52(1) of the Constitution Act, 1982
must be reconciled with s.32(1) of the Charter, which says that the Charter only applies to
Parliament and the legislatures. He defines "government" more broadly to include all
branches of the executive governments of the provinces and the federal government. He says
that the Charter will apply to these branches of the government whether they are involved in
public or private litigation, and whether it is legislation or common law that is in question.
He disagrees with Hogg that court orders are governmental actions; therefore, he concludes
that the Charter does not apply in this case. He says that although the courts must apply the
common law in a manner consistent with the Charter, when no government act is involved
the Charter does not apply. The fact that there is no reliance on government action here
means that the Charter claim must fail.
S.52(1) constitution any law that is inconsistent with the constitution is of no force or
effect reconcile this with s.32(1) which we know from Ford only applies to government

23

Elman view

Facts

Issue
Reasoning

Holding

Issue

Holding

Facts

action. good quote, can tie this into a common law Q.

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.
What about government inaction, does the charter apply then?
He doesnt see how inaction can apply to s.32, because he doesnt see any government
action in the common law.
How can you challenge something that government didnt create, but judges created?

Blainey
Sues Ontario hockey association under Ontario human rights code saying discriminating me
based upon gender.
19(2) Ontario human rights act doesnt apply to sports leagues, so cant play with boys
Is this about government action?
Goes to the SCC. True this is between private entities, but about 19(2) of the ONHRC
SCC says yes, this is about government action, strikes out 19(2) and goes back to ONHRC
and pleads case, and they declare association is discriminatory
You can have charter actions, in the middle of what looks like private disputes.
19(2) was the govt action, so thats how we get to a purely private dispute to use the charter

Hill v. Church of Scientology of Toronto

Casey Hill Crown Attorney, prosecutor now judge
Alleging that the law of defamation is contrary to s.2(b) of the charter
Is common law of defamation subject to Charter? Is this a case involving government action
because he is a crown? [court says NO to both]
Casey not acting in government capacity since he is suing privately. Charter rights do not
exist in the absence of state action.
Even in instances where you cannot invoke the charter rights, the common law must still
comply with charter values.
Difference between charter rights and charter values. Where the common law is inconsistent
with the Charter, the party alleging that the common law conflicts bears the burden of proof.
o 1) where burdens of proof are burden on rights is on person alleging violation, but
burden of justification is on government. HERE with charter values, must show that
there is a violation of s.2(b) and also show it is a reasonable limit under s.1
o 2) Because of inconsistency, the common law should be modified.
Private parties owe to each other no constitutional duties and cannot found their cause of
action upon a charter right.
Most a private litigant can do is argue the common law is inconsistent with charter values.

24

Slight modification. Overreaching changes should be left to legislatures.

Burden of proof to establish there is a violation of charter value is for party alleging charter
violation to 1) show violation under charter; 2) show there is a reasonable limit; 3) there is a
inconsistency and therefore common law should be modified.
We need to interpret the common law in a way that is consistent with the charter. The court
says that the common law can change over time because it is judge made and so the charter
will only apply to common law as between two private parties if it is somehow found to be
inconsistent with the values underlying the charter. Note not inconsistent with the charter but
is inconsistent with charter VALUES.

Take away

17.3 Parliament or Legislature: Action and Inaction

Legislative Inaction
Facts

Issue
Reasoning

Holding

Elman view

Dunmore v. Ontario 2001

Labor legislation excluded agricultural workers from the right to a union and collective
bargaining. Challenged 2(d) as a violation of freedom of association
What is the difference between legislative action and inaction?
What do we do to a legislation that excludes from is coverage certain class/group of people?
The failure to include someone in a protective regime may affirmatively permit restraints of
the regime in which it is trying to protect.
Under inclusive state action, substantially orchestrates encourages or sustains the violations of
fundamental freedoms
Bastarache J. exclusions from protective regime may in some contexts amount to affirmative
interference with the effective exercise of a protected freedom. Must NOT BE FULLY
PROVIDE A statutory benefit. E.g. protect some and not others.
Where the state acts in a way that protects some people but its actions dont cover everybody that
is what we call under inclusive state action; under inclusive state action can actually be
discrimination because it sustains the violation of fundamental freedoms. Essentially this was a
state omission.
LOOK OUT ON Exam: under inclusive state action could discriminate against the unprotected
class if: substantially orchestrates, encourages or sustains the violation of fundamental freedoms.
Idea when you set up a protective regime, and that protective regime permits restraints of
fundamental freedom, that the regime was designed to protect.
o Under inclusiveness has created restraint and therefore doesnt discriminate but
violates fundamental freedom.
State action has evolved since Dolphin Delivery

17.4 Government: Actors and Acts

Governmental Actors
Function

McKinney v. University of Guelph (1990)

University are not government actors and therefore not subject to charter claims

25

Issue
Reasoning

Universities are Ivory Tower of Academic Freedom

Is a university a government actor?
No, university is not government. Legal autonomy of the university is buttressed by its
traditional position in society the ivory tower of academic freedom
Looks at how universities are set up: 1) set up by statutes; 2) powers from statutes; 3) money
comes from government; 4) engaged in education
o BUT: not public enough to attract the charter, simply preforming a public service is not
enough to attract charter, minimal interaction, autonomous, majority of board members
are not government chosen.
o No dependent on government funds to run
Ultimately what is essential is government control and an importance of presence of
government with the governance of the public institution
Though the legislatures may determine much of the environment in which universities operate,
the reality is that they function as autonomous bodies within that environment.
Minority: yes, university is a government action

Holding
Is a University a Government Actor? LaForest. Even if violation, saved by s.1

No
o Many entities receive Government funding to to accomplish public policy
objectives;
o University has its own governing body;
o Only a minority of members (or none) are appointed by L-G in Council;
o Duty is to act in the best interest of the University and not at the direction of the
Government;
o In employment of professors, they are masters in their own houses;
o Government has no legal power to control the University.

Dissent
Not the law, but it is better than the law - Wilson
1) The control test: does the legislative, executive, or administrative branch of the Govt
exercise general control over the entity? (factors: funding, whether the governing structure
is determined by statute, whether there is day to day involvement, are some of the
decisions are subject to review, do any policies or programs require government approval)
2) The Gov Function Test: does the entity perform a traditional Gov function or a function

26

which in modern times is recognized as a responsibility of the state; uni education is just
the extension of providing for public education
3) The statutory authority or public interest test:
Whether or not the institution in question was acting under statutory authority (created by
statute) and whether it was created by statute to pursue a purpose that government
delegated to it (ex, a statute created for private to take care of prison)/ is the entity one that
acts pursuant to the statutory authority specifically granted to it to further a public interest
objective. in the broader public interest?
Wilson applied this test and determined that universities are government.

Elman agrees with this. For an exam, could go through these three prongs. Dont have to
comply with all three parts, if missing one, not fatal. Elman things his perspective is colored
by judges prior involvement in being Dean of Universities

Note
Douglas Quantum Case:

Community colleges usually attract charter scrutiny, whereas universities do not.

Some factors for Community Colleges: All board members appointed by govt, subject to
control of government, part of apparatus of government in form and fact.

Aftermath of McKinney

Douglas/Kwantlen Faculty Assoc v. Douglas College: members appointed by the government and
other requirements that keep them under control. According to case law community colleges are government.

Godbout v. Longueuil: municipalities are governments.

Stoffman v. Vancouver General: not government, they act separately in regulating hospital

Eldridge v. B.C.: not providing sign language in hospitals government here b/c its a service
that they are providing [very important case] para 44 at 828 (go to for exam). If this appears on EXAM
this is what you need to cite to determine if government action.
o

Distinguished from Soffman, Stoffmann they were implementing an internal policy and
not exercising statutory power.

Determines if governmental actions can apply to non-governmental bodies: 2 situations

where it does- 1) where the body is exercising a statutory body in exercising a statutory power of

27

compulsion or coercion. 2) where the body is implementing a specific governmental purpose or program
delegated by state.
o

(1) it may be determined entity itself is government for purposes of 32. Is it by its very
nature government? Or government because of degree of control being exercised over it as government. If
entity is determined to be government, everything they do is subject to the Charter e.g. Douglas College

(2) is the activity one that promotes a government policy/agenda etc. This demands an
investigation into the nature of the activity itself. Must scrutinize the quality of the act at issue, not the
actor. E.g. implementation of specific statutory scheme or a government program, the entity will be subject
to the Charter (such as the delivery of medical services) will be reviewed in respect to the act and not other
activities. Delivery of medical services is a government activity, Hospital private, but activity is public and
therefore scrutinized under the Charter.

Hospitals are private, but if exercising public government power and are responsible for
implementing government policy then will be subject to charter scrutiny in that regard. Hypo school
who is implementing government policy will be subject to charter in so far as they are implementing that.
Not beyond, however.

Adopts the WILSON test. Makes it good law.

For exam use this case. With Wilson test, back up with GVTA.

G.V.T.A. v. Canadian Federation of Students British Columbia Component

Government Acts
GVTA Case

CUPE wanted to put adds on busses, denied because political in nature

Does charter apply? Yes, can apply 2(b) to this. Translink is itself a government entity, so charter applies.
application of 1st rule of Eldridge (Degree of control being exercised over it)
Facts

Issue
Holding

Canada Justice v. Khadr 2008 SCC

Locked up in Guantanamo Bay
Canadian CSIS agents interviewed him; gave notes to the US officials
Khdar argued s.7 for disclosure of notes. Under Stinchcombe can get disclosure in
Canada
Does charter of rights apply extraterritorially?
Must prove US laws are inconsistent with international laws.
In Hape charter does not apply to Canadian officials who are exercising authority
in foreign country because of international law principles against extraterritorial
enforcement of domestic laws and the principle of culmaity, which accepts foreign
laws and procedures when Canadian officials are operating abroad. [para 17 pg 833].
So Charter does not apply abroad. Must follow law of country in which you are
28

Elman view

located.
US Supreme Court said this is a illegal detention of Khdar, so if in fact there is an
ongoing violation of human rights, then there is no reason to follow the laws of the
territory, because it would be contrary to Canadas obligation under the Geneva
Convention and therefore Charter does apply.
Order disclosure of CISIS transmission to US officials
Interesting because based on ruling of US SC that it was illegal.
If it was legal, would follow laws of territory, but once violation of human rights
law, culmaty is out the window and we follow the charter.

18.0 Justification Section 1

18.1 Introduction

Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can demonstrably justified in a free and
democratic society.

Two functions in section 1:

o Provides for constitutional guarantee of rights/freedoms
o States exclusive justificatory criteria by which to measure constitutionality of limitations
Free and Democratic society
o Respect for the inherent dignity of the human person; commitment for social justice; accommodation of
beliefs; respect for culture; faith in social and political institutions.
Onus: on party seeking to uphold the limitation evidence is weighted on a preponderance of evidence or
balance of probabilities cogent and persuasive evidence
o Onus is on applicant to prove violation of right; then burden shifts to government to prove there is a
reasonable limit as prescribed by law (this is on the civil burden as noted above but it is a high degree of
probability- not just tip over the balance = cogent and persuasive evidence). These burdens are not
fixed.
o Violation of s.7 has never been upheld under this section

18.2 Prescribed by Law

Prescribed by law states that limitations on rights must be expressly or implicitly mandated by statute or
by common law and be set out with sufficient precision so as to be clearly ascertainable. Government actor
cant just do something, and say it is justified under the charter. Has to be rational connection/basis with
statute.
S.1 should not be applied arbitrarily, and must be accessible to citizens to seek parameters
If the limit is not prescribed by law, then it can never be a reasonable limit in a free a democratic society
Must be intelligible standard.
Therins = not prescribed by law as soon as possible was implied you would get counsel
Thomsen = prescribed by law by implication. forthwith meant that it was a mandatory immediate thing,
therefore it was prescribed by law and reasonable limit

29

Miracle = to have prescribed by law through prescription of discretion on statue (e.g. minister can do
something) then that person must act within their discretion when trying to use s.1.
Alberta = regulation/by-laws are included in prescribed by law

Facts

Issue

Reasonin
g

Holding

Facts
Holding

Facts
Holding

R v. Therens 1985
Supreme Court Canada
Involved an impaired driver. Was not instructed of his rights when taken to the police
station.
Was his right to be informed of right to counsel infringed and if so, was it subject to limit
under s.1
The words prescribed by law make clear that an act not legally authorized can never be
justified under s.1, no matter how reasonable and demonstrably justified as it appears to
be
If violation of right, dont get to justify violation under s.1 if it is not mandated in statute
Limits cannot be open-ended/vague/arbitrary (miracle case) mitigating government
abuse of vague/arbitrary/openedended laws.
Prescribed by law is the threshold you must get over, in order to use s.1
General Proposition:
o A Limit will be Prescribed by Law if it is Expressly provided for by Statute or
Regulation or if it results by Necessary Implication from the terms of a statute or
regulation or from its operating requirements.
o The Limit may also result from the application of the Common Law
o Prescribed by law has two requirements: 1) accessibility & 2) precision
o Accessibility a statute, regulation or rule of common law will quality, statutes,
regulations, by-laws
o Precision a limit on a right need not be express, but may by implication from the
terms of a legislative provision or its operating requirements.
o General Proposition: A Limit will be Prescribed by Law if it is Expressly provided
for by Statute or Regulation or if it results by Necessary Implication from the terms of
a statute or regulation or from its operating requirements. The Limit may also result
from the application of the Common Law.
R v. Thomsen 1988
Supreme Court Canada
Criminal Code said forthwith and not as soon as practicable
Therefore, it was implied by law, that no counsel could be used.
Prescribed by law can mean express or implied by the statute/criminal code
Miracle et al. v. Ontario 2005
Sign on 401 against law, said it was against his freedom of expression
Looking for: intelligible standard otherwise not a prescription of law.
Purpose behind prescribed by law was to ensure you were making a decision on the
justificatory stage based on intelligible standards.

30

Facts
Reasonin
g

Where there is a discretion involved via statute, that discretion can only be used within
parameters and objectives of legislation

Alberta v. Hutterian Brethren of Wilson Colony

Albertans didnt wasnt picture because was against religion
Prescription by law includes regulations.
Regulations, passed by Order in Council and applied in accordance with the principles
of administrative law and subject to challenge for constitutionality, are the life blood of
the administrative state and do not imperil the rule of law. Whether the impugned
measure was passed into law by statute or regulation is usually of no consequence for
the s. 1 analysis

Prescribed by Law

Law is not taken in its narrowest sense; the Court has adopted a flexible approach:
o

Regulations;

Common Law;

Municipal By-laws;

Provisions in Collective Agreements with Govt entities;

Rules of Regulatory bodies e.g. the Law Society

Some policies; see GVTA

GVTA v. CFS

Promoting policies presents a problem, because policies can have general application and
organization/housekeeping policies

Was the GVTA no political advertising policy prescribed by law?

Holding: extends scope prescribed by law policies which are binding rules of general application
where entity is authorized to pass them.
o Test In exam if get question about policies, this is the test:
1) Was the govt entity authorized to enact the impugned policies and are the policies binding rules
of general application? If so, the policies can be considered law. (Policies focused on indoor
management will not be considered law.)
2) Are they sufficiently precise and assessable?

31

Vagueness

If there has been vagueness, can bring it up under s.7. Vague laws are not principles of fundamental
justice.

Can bring it up in s.1 in limine (at beginning of trial) if law is vague, cant get prescribed by law

Vague laws may also be relevant to minimal impairment, and usually dealt with by that prong.

Based upon rule of law, particularly principles of fair notice to citizenry and the setting of limitations on
the discretion of law enforcement.

Cant come up with meaning of law if the law is vague, therefore cannot be prescribed by law. Hard for
courts to determine conclusion they should reach; no limit on enforcement; no fair notice etc.

Content of the Doctrine of Vagueness:

o

A Vague Law does not provide an adequate basis for legal debate, I.e. for reaching a
conclusion as to its meaning by reasoned analysis applying legal doctrine. It does not sufficiently
delineate any area of risk, and thus does not provide fair notice nor a limitation on enforcement
discretion.

The Court will be reluctant to find a disposition so vague as not to qualify as law under
section in limine but will rather consider the scope of the disposition under the minimal impairment test.

18.3 The Section 1 Framework: The Oakes Test

If prescribed by law, we go onto the next step of the s.1 analysis.
R v. Oakes 1986
Supreme Court
Function Test to determine if s.1 usage is ok
Two criteria that must be satisfied to establish that a limit is reasonable and demonstrably
justified in free and democratic society
The Oakes Part One: Objective (Aims): The objective of the impugned provision must be of
sufficient importance to override a constitutionality protected right; pressing and substantiallook to the objective of the provision. Purpose of law must be important to society or designed
to promote a sufficiently important objective.
The Oakes Part Two: Proportionality (Means)
Show that the means chosen are reasonable and demonstrably justified proportionality test
1. Rational Connection Test: Are the means used carefully designed to achieve the
objective, and are not arbitrary, unfair, or irrational. They must be rationally connected
to the objective. Measures adopted must be carefully designed to achieve the objective
in question.
2. Minimal Impairment Test: The means selected must impair the right or freedom as little
as reasonably possible (Modified form by Edwards Books- less rigid, watered down)
32

first was as little as possible, modified by Edwards.

Edwards Book and Art Shop Case- avoid rigid and inflexible standards, abridges the
right or freedom as little as reasonably possible is there some reasonable
alternative scheme which would allow the province to achieve its objective with
fewer detrimental effects on the right or freedom- less rigid

Looks at vagueness and over breadth when analyzing

3. Balancing Test: There must be a proportionality between the effects of the measures
which are responsible for limiting the Charter right or freedom, and the objective which
has been identified as of "sufficient importance. Importance of the objective must
outweigh the effects of the limitation on the right or freedom and there must be
proportionality between the deleterious and salutary effects (this second part was added
from the Deganias v. CBC Case). With 2nd aspect, the salutary effects outweigh any
negative effects. E.g. hate propaganda, this would require the government showing that
there are positive aspects for criminalization it over the negative impacts.

Note: the effect of this development was that it's a difficult requirement because it
implies that the state must some how convince court that there are benefits to this limitation.

Courts had to liberalize the Oakes test with the various cases.

Chart
Subject

Function

Objective

Means

Strict

Speech, race, religion,

criminal nature

Compelling,
overriding, or
substantial

Must have tight fit

Intermediate

Gender, nationality,
citizenship, etc.

Important, significant,
persuasive

Some vagueness and

some overreaching

Minimal

Economics, business,
and social welfare

Legitimate, reasonable,
rational

Loose fit is acceptable

Dagenais v. CBC
Rephrased 3 part of proportionality test see above
Much more grounded balancing, now about effect and effect
Essentially, 2 parts of the 3rd prong. 1) Proportionality between the deleterious effects of the
rd

33

measures (negative effects) and 2) the objective itself; and proportionality between the
deleterious effects and the salutary effects of the measure (benefits)

Function

Function

Function

Functio
n

Take
Away
Functio
n
Take
Away

Edwards Book and Art Shop

2 part of the proportionality branch of the Oakes Test
Avoid rigid and inflexible standards (see above)
as little as reasonably possible is there a reasonable alternative scheme which would
allow the province to achieve its objective with fewer detrimental effects on the right or
freedom
nd

Irwin Toy v. Quebec

Distinction Between Cases where Govt was Attempting to Mediate the Conflicting
Interests of Competing Groups Less Demanding Standard is Appropriate (more deference
given to government)
AND Cases where the Govt can best be Described as the Singular Protagonist of the
Individual More Demanding Standard is Appropriate
R v. Chaulk
Proportionality: government doesnt have to come up with the least intrusive means of
achieving its objective, but a reasonable means of achieving its objective
However; R v. Robinson where it is judge made rules, Oakes test should be applied
strictly.

Thompson Newspapers v. Canada

Political speech highest type of speech
Contextual Approach with Oakes
o Series of factors that one must look at: nature of the activity, vulnerability of group
protected; groups subjective fears and apprehension of harm; inability to scientifically
measure the harm; efficaciousness of remedy.
Nature of activity?
o No nature of expression does not warrant a deferential group
Vulnerability of the protected group
o No. Scientific Evidence does not Establish Voters as a Vulnerable Group and,
Therefore, Deferential Approach is not Warranted
You have to interpret section 1 in a contextual manner
Sauve v. Canada
McLaughlin applies strict adaptation of oakes, to determine that prohibiting jailed
individuals from voting could not be saved under s.1
Gonthier applied a more flexible interoperation and upheld the legislation
Different types of applications of the Oakes test

34

Vagueness

Doctrine that says: A Vague Law does not provide an adequate basis for legal debate, I.e. for
reaching a conclusion as to its meaning by reasoned analysis applying legal doctrine. It does not sufficiently
delineate any area of risk, and thus does not provide fair notice nor a limitation on enforcement discretion.
this is why something is vague.

Applies to s.7, prescribed by law (in limine), and minimal impairment

Prescribed by law very unlikely a court will stop an inquiry into justification phase because it
is prescribed by law

Minimal Impairment raise issues of vagueness here

What Factors should be considered in determining whether a law is too vague?

o
The need for flexibility and the interpretive role of the Courts;
o
The impossibility of achieving absolute certainty a standard of intelligibility is more
appropriate;
o
The possibility that many varying interpretations of a given disposition may exist and
perhaps co-exist.

Morales Vagueness as it relates to minimal impairment merges with the concept of overbreadth.
Vagueness limits law enforcement discretion.
Over-breadth

Not a doctrine, its an analytical tool to see if there is a charter violation. Dont have to be vague, just over
broad

Heywood: Lack of notice requirement; Geographical ambit; Life time prohibition without a
review process; As to the people who it applies [over broad in all of these aspects] If legislation is to
board, wont allow use and wont pass minimal impairment and therefore not constitutional.
Function

R v. Hall (2002)
S.515(10)(c): Judicial Interim Release
o Query: what are the difficulties in criminal code provision listed above with
vagueness and over-breadth?
SCC upheld constitutionally 5-4
o The balance of above provision, is valid, denial of bail to maintain confidence in
the administration of justice applies to 11(e) and more narrow than public interest
ground.
o Provision is not over broad, striking balance between rights of accused and need to
create safety in community
Dissent: not sufficiently precise, little more than faade of precision. Too vague. Already
covered by other provisions. This revives old public interest ground that has been revoked.

19.0 Freedom of Conscience and Religion

S.2(a) Everyone has the following fundamental freedoms: (a) freedom of conscience and religion

35

19.1 Introduction

You do not need to prove harm, there mere fact that you are not free to practice or refrain from
practice is sufficient.
Freedom of religion is the right to practice religion as well as freedom from coercion or restraint.
A law that increases the costs of practicing ones religion may also constitute an infringement.
Areas in contention: Sunday closing laws; education and religion issues; personal fundamental
decisions; same sex marriage; planning laws.

19.2 Sunday Closing Laws

Function

Facts

Issue

Reasonin
g

Robertson v. Rosetanni (1963)

Important paragraphs 17-19 (pg. 865) Richie
BOR case
1) Look to the effect not the purpose. Nothing in the statute affects the liberty of religious
thought and practice. Nor is the untrammelled affirmation of religious belief and its
propagation curtailed.
2) Practical effect is purely secular and financial . . . In some cases, a business
inconvenience.
Cartwrights Dissent: A law which compels a course of conduct, whether positive or
negative, for a purely religious purpose infringes freedom of religion.
R. v. Big M Drug Mart (1985)
Supreme Court Canada
Big M charged with unlawfully carrying the sale of goods on Sunday contrary to the Lords
Day Act
Whether the LDA was in violation of s.2(a) and whether a reasonable limit demonstrably
justifiable in a free and democratic society.
LDA is coercion, therefore against 2(a) and 4th prong of test
It takes religious values rooted in Christianity, and using the force of the state, translates
them into law binding on Christians and non-Christians alike
It protects and promotes one religion as opposed to others which imports disparate impact
which is destructive of the religious freedom of the collectivity.

Holding

Dickson what is the essence of the concept of Freedom of Religion

1)

To entertain such religious beliefs as a person chooses;

2)

The right to declare religious beliefs openly and w/o fear of hindrance or
reprisal;

3)

The right to manifest religious belief by worship and practice or by teaching and
dissemination;

4)

The right to be free from coercion or constraint in ones religious practice

36

What do we mean by Coercion and Constraint?

Notions of liberty, dignity and human autonomy

If the person is compelled by the state to a course of action or inaction which

he would not otherwise have chosen, he is not acting of his own volition and
cannot be said to be truly free;

Coercion includes direct forms of compulsion such as commands to act or

refrain from acting in a certain manner on pain of penalty as well as indirect
forms of compulsion, which determine or limit alternative forms of conduct.

Can see coercion 2 ways: direct compulsion thou shalt not; but thou shalt work
on Sabbath.

these are the principles that drive the rest of the section

Government MAY NOT coerce individuals to affirm a specific religious belief or manifest
a specific religious practice for a sectarian purpose. Freedom of religion is both group and
personal.

The Government may not coerce individuals to affirm a specific religious belief or manifest
a specific religious practice for a sectarian purpose [directly or indirectly]

Cant have shifting purposes of legislation govt was saying, wasnt about LDA, but
about pause day. BUT cant have shifting purposes.

Ratio

Facts

Issue
Reasonin
g

R v. Edwards Books and Art Ltd (1986)

Supreme Court Canada
Retailers in Ontario argued that Sunday closing pursuant to the Retail Business Holidays
Act infringed on s.2(a) of the charter
Was this legislation valid?
Was this coercion direct or indirect?
o Direct: making non-believers conform to majoritarian dogma
o Indirect: more expensive for retailers and consumers who observe a day of rest other
than Sunday
Doesnt matter whether the coercive burden is direct, indirect, intentional, unintentional,
foreseeable, unforeseeable, all coercive burdens on the exercise of religious beliefs are
potentially within the ambit of s.2(a)
Violation of s.2(a) and it produces an indirect burden and is coercive on Saturday Sabbath
observers (any non-Christians).
BUT it is a reasonable limit in free and democratic society since the government created

37

Holding

an exemption. Allowing to operate business with 7 employees and 5000 sq/ft of space if
they paused on the previous Saturday.
Dickson: Uphold the legislation and find that it is a reasonable limit in a free and
democratic society.
Passes oakes, because of exception and not religious in nature, about allowing universal
pause day, no shifting purpose like Big M.
Wilson: dissents. It is coercive, indirectly.

19.3 Education

No legislative or constitutional separation of state and religion

S.93 of the constitution enshrines funding of catholic and protestant schools in certain jurisdictions
(Ontario and Quebec)
Adler v. Ontario (1996)
Supreme Court Canada
Facts
S.93 of constitution enshrines funding for Separate and Dissentient schools (catholic and
protestant schools)
Plaintiffs allege that funding catholic schools and not other religious schools is against s.2(a)
Issue
Can s.2(a) enlarge s.93
Reasonin S.93 is a comprehensive code and s.2(a) cannot enlarge upon it.
g
Provinces failure to fund does not impose an unconstitutional burden on their Freedom of
Religion it is the religion which places the economic burden on the parents of children who
attend private religious schools
Holding
Failure to fund other schools, does not constitute state interference with freedom of religion
equivalent to a violation of charter s.2(a) especially where there are no restrictions on religious
schooling
Reconcile How do you reconcile this with Big M [if there was an economic burden based on the retailers
Big M
by the state, that would be violation of s.2(a)]
The state is not imposing the economic burden, but the religion is, therefore not a violation of
s.2(a) failure to fund is not violation. There is no state action stopping them from sending
kids to whatever school they want.

Facts
Issue
Reasonin
g

Zylberberg v. Sudbury Board of Education (1988)

Ontario CA
Zylberberg challenged provision which required public schools to read prayers in class
Appellants argued this violated s.2(a)
Is this a violation of s.2(a) by coercing/forcing children to participate in religious practices?
o Coerced directly or indirectly [Big M]
Yes, this was coercion. Imposing Christian beliefs on non-Christians and non-believers
Even if students benefit, there is still coercion must look from non-Christian perspective.
Pressure or compulsion must be assessed from the standpoint of non-Christians and nonbelievers and from the standpoint of students in the sensitive setting of a public school.
Imposes on the minority a compulsion to conform to the religious practices of the majority;
Compels students and parents alike to make a religious statement;
38


Holding

Facts

Issue
Reasonin
g

Holding

Facts

Issue

Reasoning

Holding

Compare
w/ S.L.

Facts
Issue
Reasonin
g
Holding

Stigmatizes the students as non-conformists and sets them apart from members of the
dominant religion
Cannot be saved by s.1
Must look at violation/coercion from standpoint of non-believers.
S.L. and D.J. v. Commission Scolaire des Chenes
Quebec CA
2008 ethics and religious culture program was mandatory in Quebec
Concerns of parents: trying to educate in Catholic schools, and since the ERC course takes
away/teaches from a neutral perspective and therefore not Catholic. Wasnt kids exempt from
it.
Was ERC course against s.2(a) rights coercion
The formal purpose does not transmit a philosophy or influence young people
particular/specific beliefs
Does not infringe religious freedom because not actively trying to change beliefs. Must adhere
to the multicultural nature of Canada.
Refusal by board to exempt children did not violate their rights
Loyola High School v. Quebec
Involves same ERC program at heart of previous case BUT this is from point of view from
private religious school Loyola College High School
Tried to get exemption to not teach ERC program
Teaching ERC from catholic perspective
Is the ERC against s.2(a) and infringing on Loyola High School
Cant limit religious freedom of peoples who send children to the Loyola high school
private catholic institution.
Collective aspects of religious freedoms
The requirement to teach ERC from neutral perspective limited freedom of religion more than
necessary given statutory objectives
Why were parents unsuccessful, but college was (S.L)?
Public school public system was catholic system. PRIVATE school so not government.
TWU v. BCCT
TWU was an attempt to get accreditation for law school, teaching Christian world view.
BCCT denied application due to human rights violations (sexual sins etc. were not allowed)
Whether BCCT has jurisdiction to consider discriminatory practices of a private institution?
SCC based decision on administrative law and not constitution
Absent concrete evidence showing TWU fosters discrimination in public schools, the right to
adhere to certain beliefs while at TWU must be respected
Freedom of religion and guarantee against discrimination is not absolute
Religious institution is not in breach of human rights legislation where it prefers adherents of
its religious constituency

39

Dissent

LHuereaux: must protect vunerable groups such as homosexuals and bisexual communities

19.4 Personal Decisions

Second part of 2(a) protects freedom of conscience

R v. Morgentaler (1988)
Supreme Court Canada
Function
Wilsons concurrence opens s.2(a) to allow non religiously motivated beliefs to be equally
protected by the Charter. Conscience is important too.
Only statement we have about freedom of conscience all others are freedom of religion
Basic belief about human worth and dignity as well as to a free and democratic political
system. Freedom of conscience includes these and are extended these benefits. Equally
protected by freedom of conscience.
Remember this with Anselam the premise in Morgentaler, may conflict with it.
Issue
Does s.251 of the CC infringe on womens freedom of religion and conscience?
Reasonin Majority: struck down law on basis of personal security (s.7)
g
Holding
Wilson: Violation of s.2(a) because if infringes on freedom of conscience. Terminating
pregnancy is a moral decision. This was a decision that the state had no business in
interfering.
S.7 was important but s.2(a) is also important

Facts

Issue
Reasoning

Holding

B. (R.) v. Childrens Aid Society of Metro Toronto (1995)

Supreme Court Canada
Blood transfusion with Jehovah, whos belief forbids such medical intervention
Parents refuse transfusion, doctors insisted
Child protection intervened.
Parents claimed s.2(a)
How do we balance state and individuals interests under s.2(a)?
Freedom of religion is NOT absolute [LaForest Majority]
o Subject to limitations that are necessary to protect public safety, order, health or
morals of the fundamental freedoms of others
o Must practice religion in the best interest of the child, and activities may be restricted
when they are against the best interest of the child, even the childs own constitutional
right concept of best interest of the child EVEN if it requires overturning the
childs constitutional interest.
Concurrence [Iacobucci and Major JJ.] There not even willing to go to s.1 because
parental rights in 2(a) are up against the childs rights under s.7 and therefore end when there
is a serious risk to the child. THEREFORE dont have to balance in s.1
S.1 is used to balance theses interests
The Parents freedom of religion does not include the imposition upon the child of religious
practices which threaten the safety, life, or health of the child. Thus, the parents do not
benefit from the protection of Charter s. 2(a).
S.2(a) parents have right to determine childrens freedom of religion; BUT Parents freedom

40

Canadian
Foundatio
n Case v.
Canada

Facts

Reasonin
g

Holding

Exam
Hypo
Melika
Salt

of religion does not include imposition of religious practices on a child which threatens the
safety, life or health of the child.
Freedom of religion can in-fact be raised by parents who are suggesting in corporal
punishment is the result of a religious dictate.
Determine parameters of s.43 for corporal punishment. Court reinterpreted what 43 means
and parental rights to engage in corporal punishment
A.C. v. Manitoba
Supreme Court Canada
Child was 14, 10 months suffering from Chrons, Jehovah, she didnt want treatment, and
signed a directive saying no matter what, dont give me blood.
Note: once child is 16, can refuse blood
The Director of Child and Family Services apprehended her as a child in need of protection,
and sought a treatment order from the court under s. 25(8) of the Manitoba Child and Family
Services Act, by which the court may authorize treatment that it considers to be in the childs
best interests
Best interest standard operates on a sliding scale, based upon the seriousness of the illness
and maturity of child. As condition is more serious, greater scrutiny on decisions; more
mature child is, more likely child can get her way [Justice Abella]
The result of this interpretation of s. 25(8) is that young people under 16 will have the
right to demonstrate mature medical decisional capacity
Factors involved in determining sliding scale:
o In assessing an adolescents maturity, a judge should take into account
o (1) the nature, purpose and utility of the recommended medical treatment and its risks
and benefits;
o (2) the adolescents intellectual capacity and the degree of sophistication to understand
the information relevant to making the decision and to appreciate the potential
consequences; (this is focused on the child)
o (3) the stability of the adolescents views and whether they are a true reflection of his
or her core values and beliefs; (community is this really her decision or is she being
unduly influence)
o (4) the potential impact of the adolescents lifestyle, family relationships and broader
social affiliations on his or her ability to exercise independent judgment;
o (5) the existence of any emotional or psychiatric vulnerabilities and the impact of the
adolescents illness on his or her decision-making ability.
Any relevant information from adults who know the adolescent may also factor into the
assessment.
Appeal dismissed; s.2(a) was not violated. No arbitrary, discriminatory or violation of
religious freedom.
If we get a hypo on physician assisted suicide and childrens requesting relief
Look at the sliding scale
What about aboriginals who want to get alternative treatment for cancer? Does it touch on
their indianess under s.35? How does the sliding scale operate? Upheld right to refuse chemo
therapy.

41

Facts

Issue
Reasonin
g

Holding

Dissent

Facts

Issue
Reasonin
g

Bruker v. Marcovitz
Supreme Court Canada
Jewish husband refused to give wife Get under Jewish law to allow her to remarry
Moral obligation to give get was transformed into legally binding obligation and it was
formalized, therefore court could determine if unconstitutional;
Under civil obligation, wife sued
S.21.1/ 6 divorce act says this section does not apply where the power to remove the barrier
to religious remarriage lies with a religious body or official
Can Jewish husband refuse under s.2(a) to give wife ghet to get divorced
Must consider sincerity in religious conviction. Very important when determining s.2(a).
Religion does not require him to refuse the ghet
Refusal to grant ghet denies womans ability to remarry and live life in accordance with
HER religious beliefs.
Para 20: this case represents yet another case in which the claim to religious protection is
balanced against competing interests.
Must take into account when assessing 2(a) claims
o 1) particular religion
o 2) particular religious right
o 3) public/personal consequences
o 4) the religious consequences
Abella is not convinced that it was a genuine religions belief
Did not allow husband to use religious freedom as a shield, the court is protecting public
policy and contractual obligations these factors outweigh the husbands freedom of
religion.
Concerned about unwarranted trespass into religion
Syndicat Northcrest v. Amselem (2004)
Supreme Court Canada
Jewish hut on balcony
Under city by-laws was not allowed, but set up anyways. Condo company said we will put one
in common area for you to use. Amselem wasnt happy.
Whether prohibiting these hits on balconies was violation of s.2(a) freedom of religion
Iacobucci: defined religious freedoms:
o Religion is about freely and deeply held personal convictions or beliefs connected to
an individuals spiritual faith and integrally linked to ones self-definition and spiritual
fulfillment, the practices of which allow individuals to foster a connection with the
Divine or with the subject or object of that religious faith
o Defined Broadly, Religion typically involves a particular and comprehensive system of
faith and worship;
o Religion also tends to involve the belief in a Divine, Superhuman, or Controlling
Power
1. Emphasis on Personal Choice Freedom of Religion should not construed as protecting

42

Holding
How to
contrast
with
Bruker

Hutterite
Case

only those aspects of religious belief or conduct that are objectively recognized by religious
experts as being obligatory tenets or precepts or a particular religion. it doesnt matter what
the priest/Rabbi says are requirements of the religion. This is about ones personal choice and
conviction, self-definition, own spiritual faith. As opposed to what religion thinks is
objectively required. SUBJECTIVE NOT OBJECTIVE.
2. Claimants should not need to prove the objective validity of their beliefs, in that their
beliefs are objectively recognized as valid by other members of the same religion need not
show some objective religious obligation;
3. Such an inquiry is not appropriate for the Court Courts should not interfere with personal
religious belief and should not interpret or determine appropriate religious belief or conduct;
**Dueling rabbis saying yes this is required other says no not required
4. The test that the courts may inquire into is the sincerity of the religious belief; is the
belief sincerely held
5. The test for sincerity is minimal a test of good faith, neither fictitious nor capricious, and
that is not an artifice;
6. Assessment of sincerity (credibility) is an issue of fact that determination of which may be
based upon credibility and consistency with other current religious practices not based on
what they have done before, but what they are currently doing.
7. The interference with religious freedom must be more than trivial or transitory examine
the context of each case;
8. Freedom of Religion is not unlimited look at the rights of others and whether the
limitation on the right is imposed to protect against harm.
Condo infringed on Mr. Amselems freedom of religion under s.2(a)
Abella said that there is no objective reason why were not giving her the get so he must do
so BUT the court in this case says, well, you dont need objective you need subjective
views. Contrast with previous case, kind of like, well they said it must be objective, Amselem
said it can be subjective.
ONLY way to rationalize these two cases; in the Bruker case, Abella thought he was spiteful in
not granting the get. Amselem is not being spiteful
Exemption to not have pics on licenses, but now have to have pics, it was upheld that did not
violate s.2(a) on the basis that it was a safety issue.
Good quote for freedom of conscience:
Freedom of thought, conscience and religion is one of the foundations of a democratic
society within the meaning of the Convention. It is, in its religious dimension, one of the
most vital elements that go to make up the identity of believers and their conception of life,
but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The
pluralism indissociable from a democratic society, which has been dearly won over the
centuries, depends on it.
Requirement passed s.1 and was minimally impairing.
Need to balance reasonable accommodation with minimally impairment

43

20.0 Freedom of Expression

s.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;

20.05 Conceptual Summary for Freedom of Expression

1.

is there expressive activity?

2.

Is the claimant claiming a positive right?

a. If so, have the Dunmore factors been met?
a. The claim is grounded in a fundamental freedom of expression?
b. The claimant has demonstrated their exclusion from a statutory regime has the effect of a substantial
interference with s.2(b) freedom of expression, or has the purpose of infringing freedom of expression
under s.2(b);
c. That the government is responsible for the inability to exercise the fundamental freedom.
b. If the Dunmore factors have been met, can the violation be saved under s 1?

a.

Is the claimant claiming interference with the content of expression?

a. If so, consider whether there ar any analogous cases and/or general principles that can be applied
(including type and proof of harm required)
b. If there is a violation, can the violation be saved by s 1?

a.

Is the claimant claiming interference with the form (i.e. method or location) of expression?
a. Does the noise have expressive content?
b. If so, does the method or location of the expression remove protection?
c. If there is a violation with the form of expression, can it be saved by s 1?

20.1 Introduction

Essential to functioning of a democracy and link to existence of all rights and freedoms
Different types of expression
Need to think of the historical and contextual reasons for expression being contained in the Constitution
Expressive activity is a problem but needs to be limited by government in a way that promotes
openness and tolerance

44

Contrast with US
o [see attached sheet]

20.2 Purposes of Freedom of Expression

Three values that underlie freedom of expression [Ford v. Quebec]

o 1) Search for truth
o 2) Democratic participation
o 3) Personal self-fulfillment

20.3 Definition of Freedom of Expression

Function

Ford v. Quebec
Supreme Court Canada
generally the values said to justify the constitutional protection of freedom of expression
are stated as three-fold in nature, as appears from the article by professor sharpe:
o 1. Freedom of expression is essential to intelligent and democratic self-government
o 2. Freedom of expression protects an open exchange of views
o 3. Freedom of expression is to be protected because it is essential to personal
growth and self-realization
Irwin Toy v. Quebec (1989)
Supreme Court Canada

Function

Facts

Reasonin
g

Affirmed Ford
***VERY IMPORTANT CASE*** Sets up structure for all freedom of expression law.
Must apply all of the steps in freedom of expression analysis.
Advertising to people under 13 years of age. Quebec consumer protection Act wanted to
ban use of cartoons to advertise to children/sell products.
Did this infringe on freedom of expression? (s.2(b))
o Step 1: does the applicants activity properly fall within Freedom of
Expression?
Does the activity constitute expression? Is the activity expressive and convey
meaning?
Expression refers to content and form, because they are linked
Any activity will be considered expressive if attempts to convey meaning.
Therefore, cannot exclude protection of 2(b) based on content or meaning
Expression can contain actions. Recognize that some activity is purely physical
and does not convey or attempt to convey meaning; this activity will not be
protected unless there is an actual effect on freedom of expression.
Note: violence as a form of expression receives no protection. (we want to
make sure that everyone can manifest thoughts opinion and beliefs even if
contrary to mainstream ideas---because we value a diversity of ideas and
opinions) Purely physical is not expression if not attempting to convey meaning
o Step 2: Was the purpose or effect of the government action to restrict freedom
of expression
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Holding

Hypo

Purpose:
(1) Restrict content by singling out particular meaning that was not to be conveyed;
(2) Restrict form of expression so as to restrict access of others to the meaning being
conveyed or restricting the ability of the one conveying the meaning to do so.
BUT (3) Where the Government aims to control only the physical consequences of activity,
regardless of meaning, it is not controlling expression
o The question becomes: does the mischief consist in the meaning of the
activity or in the purported influence the meaning has on the behavior of
others or only the direct physical results of the activity? E.g. posting on the
telephone poll. Cities disallow this on the basis of the physical nuisance,
NOT the speech itself consequences of activity, govt can do that even if
it limits freedom of speech
Step 3: Effects: Applicant must show that the activity promotes one of the underlying
principles of free expression
Applicant must at least identify the meaning to be conveyed and how it relates
to (1) the pursuit of truth, (2) participation in the Community, or (3) individual
self-fulfillment [Ford v. Quebec]
There was a violation of s.2(b)
With regards to s.1. Met minimal impairment, advertising was rationally connected to the
goal of protecting children, effects of the ban were not so severe to outweigh the
governments pressing and substantial objective
This is the structure to use, with slight alterations when were dealing with particular
locations and places (Montreal by-law case; GVTA etc.) also slightly alter with allegations
of positive rights (government having to provide you with freedom of expression Beir
case)

20.4 Regulating the Content of Expression

1) Hate Propaganda

Analysis requires at looking at what the problem with hate speech is

Consider defamation falls under tort generally, concerns ones reputation as an individual
o
Group defamation
Concern with hate propaganda is that it can lead to violence clear and present danger
from the language and does it constitute fighting words
o
Words said in context where its likely that violence will ensue
o
Look at consequences of the language to determine this

On other hand, need to consider where the threat comes from

o
Prohibition acts to prevent hostile advance
o
Hecklers Veto where government prohibits an acting partys right to freedom of speech
in order to prevent a reacting partys behaviour

Theory that people listening/buying the words are more likely to cause violence
than the people actually writing hate speech

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Facts

Issue
Reasonin
g

R v. Keegstra (1990)
Supreme Court Canada
This outlines under criminal code/criminal law what hate speech is.
School teacher described Jewish people to students as bad people (subversive, power
hungry etc.)
Charged under s.319(2) of the CC, claimed it was his s.2(b) right
Was s.319(2) a violation of s.2(b)? could violation by s.319(2) be saved under s.1?

Issue 1: Is there a violation of the right? (apply the test in Irwin Toy)

Court said that hate speech prohibition does violate freedom of expression (words
are neither violence nor analogous to violence)

Said the expression was intended to convey meaning and thus gets the protection

Held: There is a violation of the Right.

Query: Words as Violence or analogous to violence?

Query: The Effect of sections 15 and 27

Issue 2: Is the Limitation Justified Under Section 1?

Pressing And Substantial: Hate propaganda is far from the Core Values of 2b It
should not be accorded the greatest weight in s. 1 balancing;

Look at the The Harm Principle: (1) Members of the Target Group (2) Society at
Large
Held: 1st part of test is passed.

1st Part of Proportionality Test?

Educative Effect of Trials;

Govt disapproval does not invariably result in dignifying the suppressed

ideology;

Weimar Republic is a particular case (also not a definitive one)

Held: There is a rational connection between the objective and the means.
Rational Connection: it is rationally connected.

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2nd Part of Proportionality Test minimal impairment and over-breadth?

o Look to the text of the provision;
o Great importance of object and discounted value of expression at issue;
o More than one type of Legislative tool can be used.
o Held: The legislation passes the 2nd branch of the proportionality test.
Minimal Impairment: Look to the text of the provision. What does the text actually say?.
Willfull- its purposeful- doesnt apply to speech that recklessly promotes hatred, only when
conscious purpose is to created hatred, - i.e. narrow band of prohibited speech. Great
importance of object and discounted value of expression at issue. More than one type of
legislative tool can be used
3rd Part of Proportionality Test?

Held: The importance of the Objective outweighs the deleterious effects on the right.

Benefits v. Burdens: The importance of the objective outweighs the deleterious effects on
the right.
Holding

Dissent

Facts
Issue
Holding

s.319(2) CC violated s.2(b) rights

Words are not analogous to violence
Violation of 2(b), but is it justified under s.1
Questionable benefit of legislation may be outweighed by significant infringement of free
expression
Not at all sure that the trials will have the educated effect what is being suggested by
majority will trials of hate propaganda, provide an educative asset to the public
generally?
R v. Zundel (1996)
Supreme Court Canada
Individual charged with spreading false news
Charged under s.181 of the CC which prohibited wilful publishing of false news
Could he be saved by s.2(b)?
Violation of s.2(b), objective of government is not pressing and substantial because the
purpose was shifted by the government (originally was designed to protect government
about false news about it now hate speech).
He was protected by s.2(b)
If using oakes test and purpose of regulation stopping behavior has shifted over time, it will
not pass oakes test.

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Difficulties in getting criminal prosecutions with hate speech

Requirement proof
o Mens Rea Wilful conscious purpose to promote hate
o Identifiable Groups colour, race, religion, ethic, origin, sexual orientation
o Other than in private conservation
o Disprove religious subject defense beyond a reasonable doubt
o Disprove mistaken belief defense beyond a reasonable doubt
o Disprove removal/refutation defense beyond a reasonable doubt
o Accused may still escape conviction if he proves truth of statements
The Queen v. Buzzanga and Durocher (1979):

Failure to prove that the conscious purpose of the statements were to promote hatred of
Francophones;

The Queen v. Ahenakew (2006):

Failure to prove that the conscious purpose of the statements were to promote hatred of Jews;

The Queen v. Elms (2006):

Failure to make out the element of communicating by sale or displaying and offering for sale White
Supremacist CDs.

Note: Does not include cases where AG refused to proceed with prosecution.
Alternatives to Criminal Sanctions:

General Human Rights provisions (e.g. Malcolm Ross);

Specific Human Rights provisions to deal with Hate Propaganda (e.g. John Ross Taylor);

Sign and Symbols provisions (e.g. Aryan Nations).

Human Rights Legislation the benefits

Less time consuming; Less expensive;

Easier to bring action H.R.C. required to proceed upon complaint;

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Less intimidating for the complainant;

Burden of proof on the civil standard;

No need to prove intent or conscious purpose;

Correct labeling.

New Challenges: The Internet

Query: Can these older legal regimes deal with 21st Century technological regimes?
Internet Cases:

The Queen v. Mueller aka Sentana-Ries (16 months heaviest sentence to date plus 3 yr probation);

Zundel v. Canada and Citron and the CHRC v. Zundel) the Zundelsite;

C.H.R.C. v. Bahr, Kouba, and the WCFU (Fines to the two individual respondents and the group:
$17,500 in total plus permanent orders to cease internet hate posting).

Facts

Issue
Reasonin
g

SHRC v. Whatcott
Supreme Court Canada
Where Keegstra outlines the Criminal Law side of things; this outlines the Human Right
side of things.
Anti-gay leaflets/flyers were distributed
Complaint under the Sask. Human Rights Code s.14(1)(b)
Was this hate speech? Is it protected by s.2(b)?
Three Principles [para 56-59]
o 1) Courts must apply the hate speech prohibitions objectively: would a reasonable
person, aware of the context and circumstances, view the expression as exposing the
protected group to hatred. [Objective test]
o 2) The legislative term hatred or hatred or contempt must be interpreted as
restricted to those extreme manifestations of the emotion described by the words
detestation and vilification. This filters out expression which is repugnant and
offensive but does not incite the level of abhorrence, de-legitimization, and rejection
that risks causing discrimination or other harmful effects.
o 3) Focus of analysis on the effect of the expression at issue whether it is likely to
expose the targeted individual or group to hatred by others. The repugnancy of the
ideas expressed is not sufficient to justify the restriction on speech. Whether or not

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Holding

Elman
interestin
g note

the author of the expression intended to incite hatred or discriminatory treatment is

not relevant. [dont care about the intent
The Key is: what is the likely effect of the expression on its audience, keeping in
mind the legislative objective to reduce or eliminate discrimination.
The test:
o In light of these principles, the term hatred, should be applied objectively to
determine whether the reasonable person aware of the context and circumstances
would view the expression as likely to expose a person or persons to detestation and
vilification on the basis of a prohibited ground of discrimination
S.14(1)(b) is a violation of s.2(b), but it is justified under s.1 to comply with s.1, they
cut out/sever some words. Words that are not strong enough/extreme (hatred v. belittles)
belittles will be cut out, because it is not strong to warrant a justification under s.1.
See Below for courts s.1 justification analysis
o The Objective to reduce the harmful effects and social costs of discrimination
is pressing and substantial. [Para 70 - 74]
o Rational Connection Prohibiting representations that are objectively seen to
expose protected groups to hatred is rationally connected to the objective of
eliminating discrimination and other harmful effects of hatred. [Para 79 84]
Note: The Problem with the text [Para 85, 88 93]
o Minimal Impairment: Section 14(1)(b) is one of the reasonable alternatives that
could have been selected by the legislature. [Para 106]
Note: Once again the text is a problem as it causes over breadth. This can be cured
by severing the offending terms. [Para 108, 111]
Other Issues: Distance from the spirit of s. 2(b) [Para 114]; the Political Discourse
Issue [Para 116, 117, 120]; Behavior versus Orientation Issue [Para 122, 124]; No
requirement of intent [Para 127]; Proof of Harm [Para 129,135]; and No Defenses
[Para 139 142]
o Balancing: The Benefits of the suppression of hate speech and its harmful effects
outweigh the detrimental effect of restricting expression; section 14(1)(b) is
conciliatory and remedial; the protection of vulnerable groups from the harmful effects
of hate speech is of such importance as to justify the minimal infringement of
expression. [Para 148] Held: Two flyers are held to contravene the (now amended)
section [Para 187 192]; two others do not [Para 194].
Para 140-141 Not all truthful statements must be free from restriction (with regards to
hate speech) truthful statements can be interlaced with harmful ones, or otherwise
presented in a manner that may meet the definition for hate speech.
o Shows potential how far hate speech can reach [bring up for extra points on hypo]

2) Pornography
Facts
Issue
Reasonin
g

Butler v. The Queen (1992)

Base case on obscenity law
Deals with s.159(8) [now 163(8)] obscene and undue exploitation of sex
Is the material degrading and dehumanizing
Judge this on the community standards test

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Holding

Facts

Issue
Reasonin
g

o What Canadians would not tolerate other Canadians being exposed to because of
the risk of harm. This is a national test, not one of locality.
Same principle underlying hate propaganda risk of harm
Degradation or Dehumanization test is the subordination, servile submission or
humiliation undue?
o The defense is: internal necessities test/artistic defense justifiable advancing plot
or theme undue?
Pornography is divided into 3 areas
o 1. Explicit sex with violence it is undue and a violation of s. 163(8);
o 2. Explicit sex without violence but which is degrading and dehumanizing what
would the community tolerate other Canadians being exposed to on the basis of the
degree of harm that flows from the exposure; what is incompatible with the proper
functioning of society undue if risk of harm is substantial; grey area. Alters the
definition of the section. Narrow scope of what section includes.
o 3. Explicit sex without violence which is not degrading and dehumanizing not
covered by s. 163(8); not undue unless children are employed;
NOTE: The Internal Necessities Test Follows. Once you find out that something is
in one of the top 2 categories, then you see if it will pass the Internal Necessities
Test
Is s.163(8) a reasonable limit in free and democratic society (this is after they have
reinterpreted the provision)
This case, the court was prepared to shift the objective (Against Big M) not about moral
anymore, it is now about harm to women and children.
Proportionality generally determined that expression does not directly engage the core
and is for economic profit;
Rational Connection Even though the social science evidence is inconclusive can say
that there is a reasoned apprehension of harm;
Held: Section passes the rational connection test
On Minimal Impairment only designed to catch material where there is a risk of harm,
not erotica; SECTION does not extend to private use;
Section passes the minimal impairment test
Little Sisters Book Emporium
Involving custom act little sisters was claiming that custom officials were prohibiting
gay/lesbian/homo material from coming into the country under their powers in the custom
act, but not doing this to heterosexual material. Saying law was flawed and that officials
who were applying the law were content focused.
Arguments from Little Sisters the community standards test was incompatible with the
charter, trying to carve out a different standard
Should their be a new test for homosexual pornography
Binnie: the community standards test is about harm not taste. Community standards test
forwarded the idea that it was about harm; not taste
The constitutional space does not shrink because of geography, context or community
not limited to locale, or non-geographical community (i.e. gay community). Community
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Holding
Dissent

Facts

Reasonin
g

Holding

doesnt change. Is not limited by geography context or community.

Parliament is entitled to proceed on the basis that officials will properly enforce the law.
Parliament should not make a law to guard against the improper use of the law custom
officials.
Customs provisions meet the requirements of the charter
Applies the community standards test
This is a problem of prior constraint. This is about stopping material from coming into the
country, therefore element of prior restraint.
R v. Sharpe (2001)
Supreme Court Canada
About the prohibition on the possession of child pornography (CC 163.1(4) for the
possession of child pornography. This is about possession.
Must balance: Freedom of expression (rationale of self-fulfillment) v. Protection of
children
o If self-created and privately held expressive materials involving child pornography
this is ok. To regulate would be akin to thought police.
o Privately created visual recordings of lawful sexual activity made by or depicting
the person in possession and intended only for private use this is ok. Lawful
sexual activity. Cant control.
Test: would a reasonable viewer looking at the porn objectively see its dominant
characteristic as the depiction of a child or minor in a manner that is reasonably perceived
as intending to cause sexual stimulation.
If we read theses two exceptions into the law ^^ then we can say its constitutional
163.1(4) constitutionally justified with the 2 exceptions above. Read in the exceptions
(art/privately held materials)

3) Commercial Expression

Typically advertising. Designed to promote the sale of goods and services.

2 reasons to protect: 1) it does not literally fall within the meaning of the word expression, 2) very
difficult to distinguish commercial and other types of speech
Canada v. JTI-MacDonald
Function
Speech for profit is enforced just the same as all other speech.
All speech is the same in Canadian Law
Issue
Does the fact that speech is for profit, change the way we enforce s.2(b) for freedom of
expression
Reasonin No difference between speech and profit between political. All speech is equal, and should
g
be dealt with equally.
When interpreting speech, must take a large and liberal interpretation of s.2(b)
BUT when, commercial expression is used to induce people to engage in harmful and
addictive behaviors, its value is tenuous
Holding
Objective of s.2(b) is pressing and substantial. Regulate peoples health. Passes s.1 as a
reasonable limitation in free and democratic society.

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Protection of vulnerable customers from a dangerous product outweighs the freedom to

advertise.

Note: political speech is at the core of freedom of expression. Based on issues to autonomy, dignity, liberal
democracies etc. and is at the core. review Thompson newspaper if you want more in-depth.

20.5 Restrictions on the Form of Expression

Function
Reasonin
g

Holding
Test

Montreal v. 2952-1366 Quebec Inc.

Variation of Irwin Toy test for location.
Modification adding question after the 1st one.
1. Does noise have expressive content [this is from Irwin Toy does the activity of
expression have expressive content]
2. If so, does the method or location of the expression remove the protection [2nd question
in Irwin Toy but modified for location]
3. If the expression is still protected, does the by-law infringe that protection in purpose or
effect
Part 2: is this the type of public property that attracts s.2(b) protection?
2nd test becomes
2nd step in the modified Irwin Toy test for public property is:
o Is the place a public place where one would expect constitutional protection for free
expression on the basis that expression in that place does not conflict with the
values underlying the protection, namely: (1) democratic discourse, (2) truth
seeking, and (3) self-fulfillment?
o Factors:
(1) The historical or actual function of the place; (this is easier to use)
(2) whether other aspects suggest that expression within the place would (dont
explicitly know what this is) we haven't seen a case on it.
Could make an argument under this test, that picketing at private residence at doctor who
preforms abortions, that might be an area (historically and actually) that does not
historically act as a place of democratic discourse. university might be a place where
you see this, shopping center? Maybe.
By-law was saved by s.1 of the Charter
1)Is it expression (does it convey a meaning)?
a. Yes, there was a message being sent to those on the street
2)Does method (e.g. violence) or location remove the protection?
a. Not violent, and public area used for expression, so protection not waived
b. Significance of Location
i. No protection if the location of expression is private property because Charter
applies to government actors
c. Factors in public places

i. Historical or actual use of property

ii. If it has traditionally been used for public expression (2(b)

infringement)

iii. Aspects of the place suggest that by denying expression, one would
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be undermining the values of freedom of expression

a) Government office delivering front-line service
3)Has Expression been restricted in

a. Purpose: Yes
b. effect: Yes: The purpose of the law effectively limits expression

i. Must demonstrate infringes upon truth seeking, democratic

participation, or self-fulfillment

ii. Participation in lawful leisurely activities promote self-fulfillment

values
Facts

Reasonin
g

Holding

Facts

Reasonin
g

GVTA v. CFS-BC Component and BCTF

BCFT wants to put ad on bus political adds
Transit authority has provisions in policy that state, advertising will be accepted but only to
communities particular things. Essentially, cant put porno, and POLITICAL ADDS.
Which BCTF wants to.
Location doesnt just mean geographical location, in this case means side of busses.
Court asks: should Montreal framework apply (as seen above)
Apply the MTL framework in this case:
o The ads have expressive content that prima facie brings them within the protection
of s. 2(b) and the location of the expression the sides of buses does not remove
that protection
Policy is in fact, violates s.2(b) and does not meet minimal impairment and therefore not
saved by s.1
This is not a claim for positive entitlement, this is about the denial of rights to speech. This
is about negative curtailing the right to speak.
Baier v. Alberta
This is about Positive V. Negative rights
School board elections; Alberta used to have a law, saying if you were a teacher, you could
not run for office, to be a public school trustee in your area in which you taught.
If wanted to run as trustee, had to run in neighborhood
Negative Rights: Govt should avoid taking steps that infringe on section 2 rights;
Positive Rights: Govt is required to take steps to facilitate or extend section 2 rights.
Generally, the courts have held that s. 2 of the Charter imposes negative obligations on
government but does not impose positive obligations.
o Generally, s.2(b) is a negative right. Imposes negative obligations on government
but does not impose positive obligations [Dunmore v. Ontario exception]
Test: Applies Irwin Toy + Dunmore
o 1. Is the activity expressive?
o 2. If so, is the claimant claiming a positive entitlement to govt action or the right to
be free from govt interference.
o 3. The Dunmore factors: (a) Is the claim grounded in free expression rather than
access to a statutory regime; (b) Exclusion from regime has the effect of a
substantial interference with s. 2(b) or purpose of infringing s. 2(b); and (c) Govt is
55


Elman

responsible for inability to exercise s. 2(b) rights.

o 4. If criteria not established, no s. 2(b) violation; if established, go on to s. 1.
In this case, if you dont prove your positive entitlement/prove them, then youre out. You
never put the government to the justification process.
Thinks there is a limited scope to apply this test. Dunmore is a unique case.
Elman thinks this is the wrong way to look at this. Doesnt think its transferable to
freedom of expression.

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