Three Charter Tension Points:
Positive Rights, S. 2 Analysis,
and International Law
Michael Lynk
Faculty of Law
Western University
The Right to Strike Workshop
Queen’s University
24 April 2015
1. Positive Rights and
Charter Debates
Sightings of roots under the living tree:
•Vriend (1998) – s. 15
•Dunmore (2001) – s. 2(d)
•Gosselin (2002) – s. 7
•MPAO (2015) – s. 2(d)
McLachlin CJC: (Gosselin)
“Nothing in the jurisprudence thus far suggests that s. 7 places a
positive obligation on the state to ensure that each person enjoys
life, liberty and security of the person…One day s. 7 may be
interpreted to include positive obligations [because of] the living
tree.”
1. Positive Rights and
Charter Debates
Arbour J. (Gosselin) (Dissenting)
“Constitutional rights are not simply a
shield against state interference with liberty;
they place a positive obligation on the state
to arbitrate competing demands arising
from the liberty and rights of others.”
2. S. 2 Analysis - Test
S. 2(a) – Freedom of Religion
McLachlin CJC:
“An infringement of s. 2(a) of the Charter will be made out
where: (1) the claimant sincerely believes in a belief or practice
that has a nexus with religion; and (2) the impugned measures
interfere with the claimant’s ability to act in accordance with his
or her religious beliefs in a manner that is more than trivial or
insubstantial”
Alberta v. Hutterian Brethren of Wilson Colony (2009), para. 32.
2. S. 2 Analysis - Test
S. 2(b) – Freedom of Expression
When faced with an alleged violation of the guarantee of
freedom of expression, the first step in the analysis is to
determine whether the plaintiff's activity falls within the
sphere of conduct protected by the guarantee [ie,
conveys a meaning, and is not violent]…If the activity
falls within the protected sphere of conduct, the second
step…is to determine whether the purpose or effect of
the government action in issue was to restrict freedom of
expression.”
Dickson CJC, Irwin Toy Ltd. v. Quebec (1989)
2. S. 2 Analysis - Test
s. 2(d) – Freedom of Association
“The test [for s. 2(d)], then, is whether the
legislative interference with the right to
strike in a particular case amounts to a
substantial interference with collective
bargaining.”
Abella J, SFL, para. 78.
3. International Law
Chamberlain v. Surrey School District (2002) – s. 2(a)
(Freedom of Religion)
•IC Civil & Political Rights
Keegstra (1990) – s. 2(b) (Hate speech)
•Inter’l Convention on Racial Discrimination
•IC Civil & Political Rights
Baker v. Canada (1999) – Immigration/ Administrative Law
•Convention on Rights of the Child
•Declaration on Rights of the Child
•Universal Declaration of Human Rights
3. International Law
Suresh v. Canada (2002) – s. 7 (Refugee Rights/Torture)
•Convention against Torture
•1st, 2nd, 3rd & 4th Geneva Convention
•European Convention of Human Rights
•IC Civil & Political Rights
•Vienna Convention of law of Treaties
•Convention on Status of Refugees
•
“The provisions of the Immigration Act dealing with deportation
must be considered in their international context... Similarly, the
principles of fundamental justice expressed in s. 7 of the
Charter and the limits on rights that may be justified under s.
1 of the Charter cannot be considered in isolation from the
international norms which they reflect. A complete
understanding of the Act and the Charter requires consideration
of the international perspective.” [Para. 59]