Constitutional Case Summaries
Table of Contents
Does the Charter apply?
MCKINNEY V UNIVERSITY OF GUELPH
DOUGLAS/KWANTLEN FACULTY ASSOCIATION v DOUGLAS COLLEGE
ELDRIDGE v BRITISH COLUMBIA
GODBOUT v LONGEUEIL (city)
Does the Charter apply to inaction?
VRIEND v ALBERTA
Does the Charter Apply to Common Law?
HILL v CHURCH OF SCIENTOLOGY OF TORONTO
Interpreting and Over-Riding Charter Rights
Purposive Approach
HUNTER v SOUTHAM
Section 33: Notwithstanding Clause
FORD v QUEBEC
Section 1: Oakes
R v OAKES
Section 2(a) – Religious Freedom
R v BIG M
R v EDWARDS BOOKS
ZYLBERBERG v SUDBURY
CHAMBERLAIN v SURREY SCHOOL DISTRICT
ROSS v NEW BRUNSWICK SCHOOL DISTRICT
KEMPLING v COLLEGE OF TEACHERS (BC)
R v JONES
SYNDICAT NORTHCREST v AMSELEM (2004)
B(R) v CHILDREN’S AID SOCIETY (1995)
MULTANI v COMISSION SCOLAIRE MARGUERITE-BOURGEOVS (2006)
TRINITY WESTERN UNIVERSITY v BRITISH COLUMBIA COLLEGE OF TEACHERS (2001)
S.L. COMISSION SCOLAIRE DES CHENES (2012)
LOYOLA HIGH SCHOOL v QUEBEC
KTUNAXA NATION v BRITISH COLUMBIA (FORESTS, LANDS, AND NATURAL RESOURCE
OPERATIONS)
Section 2(b) – Freedom of Expression
IRWIN TOY LTD v QUEBEC (AG)
MONTREAL (CITY) v 2952-1366 QUEBEC INC. (2005)
R v KEEGSTRA
SASKATCHEWAN (HUMAN RIGHTS COMMISSION) v WHATCOTT
Section 7 – Life, Liberty, & Security
REFERENCE RE SECTION 94(2) OF THE MOTOR VEHICLE ACT (BC)
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B(R) v CHILDREN’S AID SOCIETY OF MET. TORONTO
R v MORGENTALER
RODRIGUEZ v CANADA (1993)
GOSSELIN v QUEBEC (2002)
CANADIAN FOUNDATION FOR CHILDREN, YOUTH AND THE LAW v CANADA (AG)
CANADA (AG) v PHS COMMUNITY SERVICES SOCIETY (2011, SCC)
CANADA (AG) v BEDFORD
CARTER v CANADA (AG) 2015
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Does the Charter apply?
MCKINNEY V UNIVERSITY OF GUELPH
Facts
● uni workers challenged mandatory retirement policies of four
universities, arguing that the policies violated the equality guarantees
found in s 15 by discriminating on the basis of age.
Issue
● Does the Charter apply to universities, specifically, to mandatory
retirement policies?
Holding
● Charter doesn’t apply to UoG in this case
o Specifically, it doesn’t apply to the mandatory retirement policies
of unis
Reasoning
● Key point: the holding is case-specific in the following way:
o There can be situation sphere the activities by entities like unis
can be said to be made on a decision of the government, or that
the government sufficiently partakes in the decision as to make it
an act of government
● An institution is not deemed governmental simply because it is:
o 1. A creature of statute
o 2. Funded by the government
o 3. Incorporated to perform an important public service
o 4. Subjected to government regulation
● Universities are not bound by the Charter because
o 1) They are not organs of government
o 2) They have legal autonomy
▪ In the Douglas case they don’t have legal autonomy, and
so they’re bound by the Charter
o 3) They do not have any powers of compulsion that an ordinary
person does not have
▪ They can’t arrest and charge you, the worst they can do is
expel you
o In this case, “there’s no statutory requirement imposing
mandatory retirement on the universities”
DOUGLAS/KWANTLEN FACULTY ASSOCIATION v DOUGLAS COLLEGE
Facts
● Two faculty members challenged the mandatory retirement policy (age
65) before a labour law tribunal.
Issue
● Does the Charter apply to colleges?
Holding
● Charter does apply in this case
Reasoning
● SCC held that the Charter did apply:
● “The college was a Crown agency established by the government to
implement government policy. . . It was quite unlike the universities
which managed their own affairs.”
o all 7 board members appointed by the Lieutenant Governor in
Council.
o The Minister exercises “direct and substantive control” over the
implementation of the budget.
ELDRIDGE v BRITISH COLUMBIA
Facts
● Hearing-impaired persons sought a declaration that the decision made
by the Medical Services Commission (a non-government body) to not to
fund sign language violated s 15(1)
● They also challenged the decision by hospitals not to fund this service:
under the Hospital Insurance Act, hospitals get to decide whether
they’re going to give finding or not
● Government gave discretionary power to hospitals, but the mandate is
central to the government
Issue
● Does the Charter apply to hospitals and the Medical Commission?
Holding
● Charter does apply in this case
Reasoning
● Ratio: Private, non-government bodies can be subject to Charter if they
are used to carry out government policy
● Eldridge Test to determine if the Charter applies:
o The Charter applies if either these questions is answered as yes
(doesn’t have to be both):
▪ 1. Is the actor a government entity?
● I) by its nature
● II) because of the degree of governmental control
exercised over it
o It’s usually
▪ 2. Is the activity (or function) governmental?
o It’s not enough for the function of the body in question to be
public: “it must be found to be implementing a specific
governmental policy or program” in one of these two ways
● Issue #1: Hospitals
o The purpose of the Hospital’s Insurance Act to provide particular
services to public
▪ By providing ‘medically necessary’ services, hospitals
carry out a specific government objective
▪ Hospitals are the vehicle or means through which the
government achieves this end
● Issue #2: Is the Medical Services Commission bound by the Charter
o The Medical Services Comission was given the task of
implementing government policy; making sure all residents
receive required services without charge
▪ There is no doubt, therefore, that in exercising this
discretion the Commission acts in governmental capacity
and is thus subject to Charter
GODBOUT v LONGEUEIL (city)
Facts
● Long adopted a rule that city workers had to live in the city. Godbout
moved and was terminated.
Issue
● Does the Charter apply to municipalities?
● Was there a s. 7 violation?
Holding
● Charter does apply to municipalities
Reasoning
● Ratio: SCC held that the Charter does apply to municipalities
o KEY: is not simply that municipalities are public, but that they are
governmental entities (as per Eldridge test)
● What makes an entity governmental? – Test for Q. 1(i) in Eldridge
o Factors identified in Godbout
▪ 1. Municipal cuncils are democratically elected
▪ 2. Taxation power
▪ 3. Law-making power
▪ 4. They derive their law-making authority from the
provinces
▪ 5. Powers of coercion
Does the Charter apply to inaction?
VRIEND v ALBERTA
Facts
● There is a challenge to the omission of “sexual orientation” from
Alberta’s Individual’s Rights Protection Act (“IRPA”), which is a provincial
human rights statute.
● The omission was a deliberate one, that had been revisited by officials
on several occasions.
● Vriend was fired from his job at King’s College - a Christian educational
institute - because he was in a same-sex relationship.
● Vriend could not file a complaint under the IRPA because sexual
orientation was not a prohibited ground of discrimination.
● This case was unique because…
o It dealt with an omission – government inaction
o It was between two private parties; the public law aspect came
through the IRPA legislation
Issue
● challenged exclusion under s. 15; equality rights
Holding
● there is a violation of s. 15
Reasoning
● Ratio: The Charter can apply to legislative omissions when it is a matter
of under-inclusion
o It might also be possible to say in this case that the deliberate
decision to omit sexual orientation from the provisions of the
IRPA is an ‘act’ of the Legislature to which the Charter should
apply
o An omission is still considered an act; in this case there was
evidence that it was deliberated and that they chose not to
● Ratio: relationships between private parties can also be held up to
Charter scrutiny
Does the Charter Apply to Common Law?
HILL v CHURCH OF SCIENTOLOGY OF TORONTO
Facts
● At a press conference, the Church of Scientology stated that Hill (a
Crown Attorney) had misled a judge and breached a court order sealing
documents belonging to the Church of Scientology; Hill brought libel
action against the Church of Scientology.
Issue
Holding
Reasoning
● Is the common law of defamation inconsistent with the Charter ‘s
guarantee of freedom of expression found in 2(b)?
● No (but we learn that after “Charter values” are applied)
● Charter does not apply to private parties (state action, or inaction, is
needed)
● A private litigant can only argue that the common law is inconsistent
with Charter values
o If there is a conflict, one must balance the principles
▪ S. 1 analysis is inappropriate
▪ This is a value judgement about if free speech should be
curtailed in the way it is framed in the common law
o The burden of argumentation is on the party who claims there is
inconsistency (s. 1 analysis places the burden on government)
● SCC on Charter Values in Scientology
o “in order to make the law comply with current societal values.
The Charter represents a restatement of the fundamental values
which guide and shape our democratic society and our legal
system. It follows that it is appropriate for the courts to make
such incremental revisions to the common law as may be
necessary to have it comply with the values enunciated in the
Charter.’
● In this particular case two principles must be balanced:
o 1. Protection of one’s reputation
o 2. The importance of free expression
● Cory J: the common law of defamation strikes the balance
Interpreting and Over-Riding Charter Rights
Purposive Approach
HUNTER v SOUTHAM
Facts
● the search of a newspaper office was carried out by the Combines
Investigation Branch.
Issue
● was the search consistent with s. 8 of the Charter, (which prohibits an
“unreasonable” search and seizure) (or was prior judicial authorization
required?)
● How should ‘unreasonable’ be interpreted?
Holding
● No it wasn’t, they didn’t have prior judicial justification
Reasoning
● SCC rejects a dictionary definition
o Colloquial use isn’t necessarily helpful for law
● Purpose of s. 8
o *s. 8 is not supposed to give powers to officials; it is supposed to
protect individuals.
o Therefore, we must assess the reasonable or unreasonable
impact of a law on the its subjects.
o This (*) starting point leads Justice Dickson to conclude that s. 8
gives individuals a reasonable expectation of privacy: reasonable
and probable grounds are needed before a search is carried out
(the provisions in question are deemed invalid for failing to meet
this standard)
Section 33: Notwithstanding Clause
FORD v QUEBEC
Facts
● Retailers in Quebec argued that their 2(b) rights were violated by the
Quebec law that prohibited them from using signs that are written in
English.
o But the Quebec National Assembly had used the override clause
when they enacted An Act to Respect the Constitution Act, 1982.
o Retailers lawyers said that the specific charter right had to be
specified
Issue
● Was Quebec’s use of s. 33 valid?
Holding
● Yes, the use of s. 33 was valid
o They used a standard clause (they did not specify which rights
were at issue), to apply to all legislation (“omnibus”)
Reasoning
● s. 33 requires the court to look at the form of the law (rather than the
substance); hence the standard clause used is valid
o You’re not asked to look at the specific right in relation to the
specific legislation
● Ratio: The court does not have to state the specific right at issue (the
government doesn’t have to specify which Charter right they’re
overriding)
o Ford tells us that s. 33 is a broad power and can be omnibus, the
clause is of a formal nature
▪ By formal, it means that they can apply it to whatever
they want, it doesn’t need substantive reasoning
● This means you don’t have to think of the content
of rights when you enact it, and judges don’t need
to consider the content with a 33 claim
Section 1: Oakes
R v OAKES
Facts
Issue
Holding
Reasoning
● Oakes was caught with hashish oil (8 viles) and cash; He was charged
with possession for the purpose of trafficking under the Narcotic Control
Act (NCA).
● Oakes claimed that the drugs were his own and that he did not intend to
sell them. Under section 8 of the NCA, anyone found with illegal drugs
was presumed guilty of trafficking (reverse onus clause).
● Is the reverse onus clause constitutional?
● No, it violates 11(d) of the Charter, the right to be presumed innocent.
● Pressing and substantial objective?
o Yes
● Rational Connection?
o The "possession of a small or negligible quantity of narcotics does
not support the inference of trafficking … it would be irrational to
infer that a person had an intent to traffic on the basis of his or
her possession of a very small quantity of narcotics
Section 2(a) – Religious Freedom
R v BIG M
Facts
● Big M Drug Mart opened on Sunday against the Lord’s Day Act; Big M
challenged on 2(a), freedom of religion
Issue
o Is the Act consistent with s. 2a)
Holding
● No there is a violation and can’t be saved under s. 1
Reasoning
● Lord’s Day Act is coercive
o Ratio: individuals cannot be coerced by the state to engage in
religious practices
● Prevents non-Christians from doing something that is ‘otherwise lawful,
moral, and normal’
● Antithetical to Canada’s commitment to multiculturalism
● 2a) Analysis: Test (first version)
o Consider the purpose and effect of the legislation – does either
of these violate 2a?
o Q: What is the purpose of the Act?
▪ A: Compelling Christian Sabbath
o Purpose was held to be illegitimate; there was no need to carry
the effects
o By having purpose and effect shows that this is a broad
consideration
● SCC rejects idea of shifting purpose (contrast to Butler)
R v EDWARDS BOOKS
Facts
● The Ontario Retail Business Holidays Act makes it an offence to open on
holidays, including Sunday; Edwards Books opened on Sunday
o There was an exception for small businesses to open on Sunday if
they closed on Saturday (aimed at mom and pop shops)
● In the background of this case, it was seen as beneficial that everyone
should have a single day of rest together (communal benefits of
common day of rest); especially considering workers in factories/big
businesses
Issue
● Is the Act unconstitutional because it violates 2(a)?
Holding
● there is a violation of 2(a), but it’s saved under s.1
Reasoning
● Purpose and Effect
o Purpose:
▪ Unlike Big M, no religious purpose; it’s secular
o Effect (key in this case):
▪ Act has an effect on religious observers, most notably, it
has indirect coercion on those who don’t work on
Saturday
● They’ll end up missing two days
▪ Because the effect is problematic violation of 2(a)
o Effect: what we learn
▪ SCC identifies two kinds of coercion
● Direct coercion: Act forces people to close on
Sunday
● Indirect coercion: It also disadvantages Saturday
worshipper
o The state is not required to remove “every miniscule stateimposed cost associated with the practice of religion.”
o “Laws of general application may increase the cost of religious
practices as long as the burdens are ‘trivial or insubstantial’”
● Oakes test
o Pressing and substantial objective? YES
o Proportional? YES
▪ Rational Connection only applies to retail and there’s
exemptions for some businesses
▪ Minimal Impairment (deferential approach)
● The Charter shouldn’t be used to roll back
legislation that helps disadvantaged
● Other possible schemes would require an inquiry
into people’s beliefs that is a non-starter
▪ Overall Proportionality Yes, a serious effort has been
made to accommodate Saturday observers
ZYLBERBERG v SUDBURY
Facts
● Class starts with Lord’s Prayer
● Child could leave during prayer, wouldn’t otherwise be required to
participate
● This was in accordance with s. 28(1) of the RRO
● Non-participating children would stand with the others, but not pray
Issue
● Does 28(1) violate 2(a)?
Holding
● yes, and not saved by s. 1
Reasoning
● Effects
o School board said no pressure to participate; embarrassment is
not coercion
▪ SCC disagreed: compulsion must be assessed from
standpoint of students ‘in sensitive setting of public
school’
o Mere appearance of choice here: in reality there is peer pressure
to conform to the majority
▪ STIGMA is the sanction (Key proposition)
● Oakes
o Minimal Impairment legislation fails this step
▪ There are other means that are less impairing of
individual rights
● There’s other way to affirm the values of the
school other than Christian prayer by compulsion
o In Toronto, they have prayers from
different groups everyday
CHAMBERLAIN v SURREY SCHOOL DISTRICT
Facts
● Teacher wanted 3 books for kindergarten curriculum; books dealt with
same-sex families; Board denied the request; parents sat at the board,
they thought that the books weren’t age appropriate, signed a
document that they weren’t homophobic; board was from a wide variety
of religions
Issue
● Was the decision of the board constitutional?
Holding
● Violation of 2(a), not saved by s. 1
o Board was acting outside its own mandate, articulated in School
Act
Reasoning
● Administrative Law Dimension:
o Board’s decision was unreasonable because it was outside the
mandate under the School Act
● The Board violated secularism and tolerance in s. 76 of the Act
o Priority was given to certain religious views
o The focus should have been on ‘equal respect’ for all families
o Court rejected worries of 1) cognitive dissonance and 2) age
appropriateness
▪ 1) exposure to cognitive dissonance is arguably necessary
if children are going to be taught what tolerance itself
involves
▪ 2) Tolerance is always age-appropriate
● Board’s error was violating secularism and
tolerance; instead of proceeding on the basis of
respect for all types of families, the
superintendent and Board proceeded on
exclusionary philosophy
● The religious origin of the parents’ objections is
not in itself fatal to decision
o This is a tolerance decision from McLaghlin
o READ UP THE DISSENT ON THIS (Oct. 15 Lecture)^
▪ But what about tolerance for different beliefs/thoughts?
ROSS v NEW BRUNSWICK SCHOOL DISTRICT
Facts
● Ross was a school teacher; he expressed anti-Semitic views outside of
the classroom, but never in the class room. There was no evidence that
his students were impacted by his behavior outside of the classroom.
Issue
● Was Ross’ 2(a) rights violated?
Holding
Reasoning
● SCC upheld decision from a Human Rights Tribunal, that Ross created a
poisoned environment – but they said he could work in a non-teaching
role
● We are dealing with the education of young children who are vulnerable
to the messages of their teachers:
o Children are less likely to make the intellectual distinction
between Ross’s actions and words “inside” and “outside” the
classroom
o Children are less likely to distinguish between “truth” and
“falsehood.”
o The goals of school system: foster self-respect and acceptance,
equality, and tolerance.
o Step 1: Rational Connection
▪ Justice La Forest: It was reasonable to anticipate a causal
relationship between Ross’s conduct outside of the
classroom and the “poisoned educational environment”
inside of the school.
● CAUSAL EVIDENCE ISN’T REQUIRED – THIS
CREATES A LOWER BAR FOR THE GOVERNMENT
KEMPLING v COLLEGE OF TEACHERS (BC)
Facts
● Teacher wrote discriminatory letters against gays; he stated clearly that
he was writing as a teacher and that his views would govern his actions
as a teacher
Issue
● Was Kempling’s 2(a) rights violated?
Holding
● Court upheld decision to suspend Kempling’s license
Reasoning
● In this case, the discrimination was obvious and directly impacted their
teaching (compare to Ross)
R v JONES
Facts
Issue
Holding
Reasoning
● Canada School Act allows for students to be exempt from compulsory
public education if:
o 1) They are attending a school approved by the Provincial
Department of Education
o 2) It was certified that the student was under sufficient
instruction” at home or elsewhere.
● Jones (a Baptist pastor) was educating his children in a school in the
basement of his church.
● Jones refused to seek governmental approval: He argued that he was
“authorized by God” and that the act of applying for approval would
violate his 2(a) rights under the Charter.
● Was Jones’ 2(a) rights violated?
● Holding: There is a violation by 2a), but it’s justified
● Ratio: 2(a) “the court is in no position to question the validity of a
religious belief, notwithstanding that few share that belief.”
o The intrusion is too trivial to recognize (don’t worry about the
word peripheral)
▪ He was denied a certificate
▪ To decide otherwise would create an ‘unwarranted
burden’ on lawmakers
● It would open the floodgates
SYNDICAT NORTHCREST v AMSELEM (2004)
Facts
● Facts: Dwelling in a succah hut during Jewish religious festival
contravened condo by-laws against decorations on balconies. The condo
board proposed an accommodation, in which a communal succah hut
would be provided. This solution was not accepted by the Jewish
residents in question.
o THIS IS A CASE BETWEEN PRIVATE PARTIES
o This is a Quebec Charter case, not a Charter case
o They consider the issues loosely, not in a step-by-step way like in
the Charter
Issue
● Do the by-law’s violate the appellant’s religious freedom
Holding
● There was a violation of Quebec Charter
Reasoning
● First argument by Condo board is why did you by the condo if you didn’t
agree with the free balcony case?
o Court dismisses this; you can’t contract away your Charter rights
● Religion defined by the court:
o Typically involves a particular and comprehensive system of faith
and worship
o Tends to involve belief in divine power
▪ ‘Typically’ and ‘tends’ leaves some breathing room
● 2(a): Amselem Test
o Is there a ‘sincerely held belief’ that has a ‘nexus with religion’?
▪ ‘Sincerely held belief’
Relevant Variables
o Credibility of claimant’s testimony
o Consistency with their current religion
practices
o The claimant need not demonstrate that
he or she believes the act is mandatory
o The claimant’s past is of limited relevance
● is so subjective that it’s hard to fail that step
● Talk about what a sincerely held belief is
● It does not have to fall in line with a
majority/established practice within a faith
(women aren’t technically required to stay in a
Succah, but what if they feel they should?)
▪ Nexus with religion
● Relevant Variables
o It’s difficult to draw this line; not enough
cases have been decided on this to
establish a clear line
o Just make common sense arguments
o Use a working definition of religion
o The ‘subjective perspective’ is central
● has to call for the particular line of conduct by
being objectively/subjectively customary
● You need to define religion make sure the
arguments build well
▪ Just because this first step is easy doesn’t mean that you
can go past it really quick, still build a decent length
argument, but don’t go on for way too long
o Is there ‘non-trivial interference’ – this standard of triviality
comes from Jones
▪ ASK: 1) was there interference, and 2) was it trivial
▪ Establish whether the law, in purpose or effect, has
curtailed the ‘right’
▪ In Jones, the answer is no – if a state demands that you fill
out a form to exercise your religious right, that is way too
small to create an issue
▪ Amselem passes the bar in triviality
Test Applied to the facts
● Step 1: sincerely held belief that has a nexus with religion
o Even though the court notes that the practice is not mandatory,
it was deemed to be of importance to claimants
o The majority rejects the need for expert evidence
● Step 2: Is there non-trivial interference
o YES, preventing succahs is a serious interference
o They’re weighing the individual’s desire to have the succah
against the alternative in having them removed
o The SCC reaffirms that s.2a) excludes what is merely trivial. In this
case, the burdens of the communal succah were found to be
substantial
● SCC rejects ‘justifications’
o Safety – little danger, time-limited use
o Aesthetic interests: this isn’t important enough to outweigh
religious freedom, mutual tolerance is needed
▪ On an exam, explain where you’re getting tolerance
definition from
▪ In Amselem, the idea is that we’re tolerating difference
by bending the rules
▪ In Chamberlain, in the name of tolerance she overrides
the rule of the board
● It’s not about accommodating religious
difference in this case, her vision of tolerance is
that everyone should have a particular idea of
equality that should be taught to students that
overrides accommodating different religious
views
▪ Explain which case you’re using when you talk about this
– don’t have to necessarily give a full definition
B(R) v CHILDREN’S AID SOCIETY (1995)
Facts
● The Children’s Aid Society attained a court order for wardship over a
child (under the Child Welfare Act) after parents refuse to consent to a
blood transfusion for religious reasons
Issue
Holding
● Does the order violate 2(a)?
● Holding: There is a violation by 2(a); upheld by s. 1
Reasoning
● 2a) is engaged: “The right of parents to rear their children according to
their religious beliefs, including that of choosing medical and other
treatments, is a fundamental aspect of freedom of religion.”
● Oakes
o 1) Pressing and Substantive:
▪ yes, we should protect kids
o 2. I) Rational connection:
▪ Yes, the process is far from arbitrary; carefully crafted
▪ There’s a check on power that’s built into this system
o 2. II) Minimal Impairment:
▪ Yes: ‘It recognizes the parents as individuals who can
make arguments in front of tribunal with evidence’; there
is a full process that values the perspective of the parents
o 2. III) Overall Proportionality:
▪ Yes, life of child outweighs 2a) rights
MULTANI v COMISSION SCOLAIRE MARGUERITE-BOURGEOVS (2006)
Facts
● a high school student (“G”) was prohibited from wearing a kirpan to
school; it was deemed to be a violation of the Code of Conduct.
● school allowed Multani to bring Kirpan sewed into clothes, school board
denied this
Issue
● Was G’S 2(a) rights violated?
Holding
● Holding: There is a violation by 2a
Reasoning
● This is a case about reasonable accommodation
● Oakes
o Minimal impairment
▪ Decision to establish an absolute prohibition against
wearing a kirpan does not fall within range of reasonable
alternatives
o Undue Hardship – new concept that’s introduced under Minimal
Impairment – applied when an individual wants a religious
exception/accommodation
▪ In relation to discrimination, the courts have held that
there is a duty to make reasonable accommodation for
individuals who are adversely affected by a policy or rule
that is neutral on its face, and that this duty extends only
to the point at which it causes undue hardship to the
party who must perform it.”
● THE UNDUE HARDSHIP IS REFERRING TO THE
COMMUNITY
TRINITY WESTERN UNIVERSITY v BRITISH COLUMBIA COLLEGE OF TEACHERS (2001)
Facts
● Trinity Western is a private Christian university
o Their Community Standards documents must be signed by
students agreeing not to do stuff that is biblically condemned
o They want an autonomous teacher program away from Simon
Fraiser
o TWU was denied accreditation
▪ One reason was that TWU was a discriminatory institution
against gays
Issue
Holding
Reasoning
●
● Was it within the BCCTs jurisdiction to consider whether the program
followed was discriminatory?
o If yes, the SCC must assess BCCT’s decision (admin law)
● SCC overturned BCCT’s decision
● Reasons:
o TWU is a private organization
▪ SCC draws upon Charter values: Freedom from
discrimination (s.15) must be balanced against religious
freedom (2a)
● There’s not much guidance given about what this
‘balancing’ means
▪ The scope of the rights must be ‘properly defined’ in
order to avoid a conflict
o They’re reluctant to make a decision based on risk of
discrimination there was no actual evidence of discrimination in
this case
o The community standards articulate a personal commitment; this
alone is not enough to allow us to ‘anticipate intolerant
behavior’
o This would lead to a slippery slope – do we start to assume that
just because people went to this school, they are discriminatory?
o Big points:
▪ it’s discriminatory in reverse to say that all people who
believe and signed this document will be discriminatory
▪ the freedom to believe is broader than the freedom to
act
● Dissent
o Concern on pressure exerted on students because of the religious
belief of teachers
o The decision of BCCT is reasonable and proactive
S.L. COMISSION SCOLAIRE DES CHENES (2012)
Facts
● Facts: parents argued that mandatory world religions course violated
2a); they feared the course would seriously harm their children’ they
claimed that the course was not ‘neutral’ but delivered a secular
message of moral relativism
● NOTE: we’re dealing with 2a) rights of parents, not their children
Issue
● Issue: is the decision of the Board to deny exemption constitutional?
Holding
● Holding: there is no violation of 2a)
Reasoning
● Minority Rights – must be protected with new Canadian social context
● Religious Neutrality – seen by many Western states as a legitimate
means of creating a free space in which citizens of various beliefs can
exercise their individual rights …
● Test: Amselem
o Sincerely held belief
▪ Yes
o Non-trivial interference
▪ No  we need to make this determination from an
“objective standpoint” and the parents have failed to do
so (i.e. they have failed to establish “interference” in
reference to either purpose or effect).
● Interference: purpose or effect
o Parents claim the effect of the court interferences with their 2a)
rights in two ways
▪ a) “Cognitive dissonance”: their children will be confused.
● SCC disagrees: the parents are rejecting the
Canada’s “multicultural reality.”
▪ b) This course will hinder their ability to provide a
religious education for their children.
● SCC argues that the parents have failed to
establish this claim: the parents fail to adopt the
“objective standpoint” and show that the program
interfered with their ability to pass their faith to
their children objectively
o Martin: this is impossible to prove – relies
on a counter-hypothetical
LOYOLA HIGH SCHOOL v QUEBEC
Facts
● Loyola wants an exception to World Religions program required in the
provincially mandated ERC program; Loyola is a private Catholic school;
exception was not granted; they had proposed to teach the course from
a Catholic perspective
Issue
● Is there a 2(a) violation?
Holding
● Yes, the exemption cannot be withheld
Reasoning
● Abella J decides the case by relying on administrative law (Doré) so we
don’t have a s. 1 analysis on offer from the majority; Abella J also states
that the SCC does not have to consider whether corporations have 2(a)
rights.
● Charter Values (Dore)
o Charter values are ‘those values which underpin each right and
give it meaning’
o “the discretionary decision-maker is required to proportionately
balance the Charter protections to ensure that they are limited
no more than is necessary given the applicable statutory
objectives that she or he is obliged to pursue.”
● The requirement that Catholicism is taught from a “neutral perspective”
is problematic:
o “preventing a school from teaching and discussing Catholicism
from its own perspective does little to further the program’s
objectives while at the time seriously violating values underlying
religious freedom”
o This approach interferes with the rights of parents to transmit
their faith to their children through communal institutions.
o But, the other portions of the course must be taught from a
neutral perspective.
KTUNAXA NATION v BRITISH COLUMBIA (FORESTS, LANDS, AND NATURAL RESOURCE
OPERATIONS)
Facts
● Discussions/negotiations about construction for several years; at the last
minute, the Indigenous group said the Grizzly Bear Spirit spoke to them
and told them that the spirit will leave if the construction is not halted
Issue
Holding
● Did the Minister violate 2a)?
● No
Reasoning
● Amselem
o Sincerely held belief with nexus of religion
▪ Court says YES – K sincerely believe Grizzly Bear Spirit
o Non-trivial interference:
▪ NO
▪ KEY: the charter protects the freedom to worship and
hold beliefs, not the spiritual focal point of worship
● This is a new element to the 2a) test
● Moldaver (Concurring):
o 2(a) was infringed, but the infringement can be justified under s.
1.
o 2(a): “In this context, state action that impacts land can sever the
spiritual connection to the divine, rendering Indigenous beliefs
and practices devoid of their spiritual significance. My colleagues
have not taken this unique and central feature of Indigenous
religion into account.”
Section 2(b) – Freedom of Expression
IRWIN TOY LTD v QUEBEC (AG)
● This case involves a challenge to provincial legislation restricting
Facts
television advertising directed at children.
● Recognition that corporations can recognize freedom of speech
● Company wants to advertise to children
● Legislation was introduced to limit the ability of advertisers to reach
children
Issue
Holding
● Violation of 2b?
●
Reasoning
● Test applied to facts of Irwin Toy
o The Consumer Protection Act was intended to restrict both the
content and the form of expression in order to protect children.
▪ it looks like regulations directed only at time, place, and
manner, and not content, because ads can appear in
magazines.
▪ however, it is a restriction on content: the purpose of
the legislation is to prevent children from being exposed to
certain messages.
▪ The purpose is clearly to restrict content, so it violates 2(b)
● S. 1: Oakes Test:
o 1) Pressing and substantial objective? Yes, the CPA has an
important objective (protect children from advertisers)
▪ KEY: susceptibility of children to manipulation
▪ “the legislature was not obliged to confine itself solely to
protecting the most clearly vulnerable group. It was only
required to exercise reasonable judgment in specifying
the vulnerable group.”
▪ “Courts are not called upon to substitute judicial opinions
for legislative ones as to the place at which to draw the
line.” (Edwards Books)
▪ The court is mediating between the claims made by two
groups within society.
▪ On a “balance of probabilities” SCC determines that
children up to the age of 13 are manipulated by
advertising.
▪ The structure of the decision – the court is mediating
claims between two groups
o 2) Proportionality
▪ Rational Connection? YES
▪
▪
Minimal Impairment (Deferential Standard) YES
● the court does not want the Charter to become an
“instrument of better situated individuals to roll
back legislation” which helps the less advantaged
(Edwards Books) – and so they go with
deferential standard
● SCC: less intrusive means are available, but this
scheme is reasonable
Overall Proportionality (Deleterious Effects)
● There is no evidence that the effects of the ban are
so serious that they outweigh the government’s
purpose (which was deemed to be pressing and
substantial).
● Irwin Toy must find new strategies to sell
MONTREAL (CITY) v 2952-1366 QUEBEC INC. (2005)
● A nightclub used a loudspeaker to broadcast music and commentary with
Facts
the aim of attracting patrons. They were charged under a by-law that
prohibited producing noise that could be heard outside using sound
equipment
● does 9(1) of the by-law infringe 2(b)
Issue
● violates 2b) but it’s saved under s. 1
Holding
Reasoning
▪
▪
▪
▪
R v KEEGSTRA
Irwin Toy Test
o 1) Content
▪ YES: there was a message being sent to those on the
street
o 2) Form
▪ Method OK (not violent)
▪ Location
● Although the property is private, the noise could
be heard on the street
● Public property implicates the state, and so
Charter applies
o The type of public property matters
● Historical and actual function of the place?
o Public domain
● 3 purposes of free speech
o Nothing to suggest that the act
contravenes any of the 3 purposes
o 3) Consider the Purpose and Effect
▪ The by-law “has the effect of restricting expression
which promotes one of the values underlying 2(b)”,
namely “self-fulfillment.”
▪ The by-law is meant to allow residents to live peacefully
▪ Note: the bar is low!
Oakes
1. Pressing and Substantial objective: Yes (noise pollution)
2. Proportionality?
o There are exceptions built into the scheme.
o No evidence that discretion was abused
o i) Rational Connection? Yes
o Ii) Minimal Impairing (Deferential Standard)? Yes
▪ The question is not whether the SCC can think of a “less
impairing scheme.”
▪ In this case ask: is the scheme reasonable or ‘good
enough’?
▪ We have two competing groups: the solution was
reasonable given the practical issues any alternative faces
o iii) Overall proportionality?
o Balancing deleterious and salutary effects:
▪ It is an entertainment district, but the people who live
there still have rights (“public good”).
▪ SCC concludes that the good effects of the by-law
outweigh any negative ones:
Facts
Issue
Holding
Reasoning
● Keegstra was making anti-semitic comments in the classroom
o The reason nobody was talking about the issue of the classroom as
a location, like they did in Ross, was because this was a criminal
case dealing with a section in the Criminal Code – it was about
prohibiting the speech full stop in Canada, not prohibiting it in the
classroom, like in Ross and Kempling
o On the topic of ‘hatred’ (contrasting with Whatcott)
▪ The hatred in this case was very obvious, there was a mens
rea component in that Keegstra wanted the other group to
feel inferior
● A) Is s. 319 of the Code unconstitutional b/c it violates 2(b)?
● B) Does defence of truth found in 319(3)(a) of the Code violate Charter’s
presumption of innocence
o Defence makes it the onus of the D to prove that the thing is true
● A) 2b) is violated, but upheld under s. 1
● B) this isn’t relevant
● Overview of the Issue by SCC
o The frame the issue of racial hate as a central concern around the
world
● 2b): Irwin Toy Test
o Step 1:
▪ Content: there is an attempt to convey meaning
▪ Form: not violent threats of violence do not count as
violence
● This was before Kawartha
o Step 2:
▪ Purpose of 2. 319 of the CC is to prohibit words from
being expressed
o Therefore 2b) is violated
▪ Effect isn’t mentioned because it’s so clear that the
purpose is to censor free speech – don’t need to move to
effect
Oakes Test
● 1) Pressing and substantive objective?
o Yes, it is avoiding definite harm
o This is an example of a case where harm isn’t physical
o SCC says there’s two kinds of harm
▪ There’s harm to individuals in the community
▪ Harmful effect on the community as a whole
o The psychological harm could materialize in physical ways
o In order to support the claim that the objective is pressing and
substantial
▪ 1. Looks to International Human Rights Instruments
▪ 2. S. 15 (equality) and s. 27 (multiculturalism)
● The statute aims to protect these
● 2) Proportionality
o Proportionality: the SCC begins with “general considerations”
(not part of the test).
o Values to be considered which comprise the “core”/underlying
values of 2(b):
▪ A) truth
● There’s a very low chance of hate speech being
true – and hate speech doesn’t promote truth like
other forms of speech do
● Can’t expect all people to be rational and dismiss
racist ideas in an unregulated market of ideas
▪ B) self-fulfillment
● It may fulfill the speakers, but takes away
fulfillment from the people it’s directed at
▪ C) Democracy
● Victim class may not feel free to articulate their
POV – the silencing impact on the victim class
takes away from democracy
▪ ^This shows that hate speech is ‘non-core’ speech
● Rational Connection
o Yes: harm is reduced
o Majority rejects worries about ineffectiveness from McLachlin
on the dissent, specifically:
▪ The censorship can promote the cause of hate-mongers
▪ in practice, these provisions do not work (Nazi Germany)
▪ Mclaclin – ‘if listeners are gullible enough to be swayed
by racism, these listeners are just as likely to believe that
the statements are true because the government is trying to
suppress it.’
● Minimal Impairment (deferential standard)
o Worry: the legislation is overbroad and vague
▪ These are both rule of law ideas – if the law is overbroad,
it captures more forms of speech then intended
▪ It will capture speech that is simply
unpopular/unconventional
▪ This law can have a chilling effect
o Reply: there are definitional limits
▪ The term hate has enough determinate meaning
▪ Demanding mens rea – the word ‘wilfully’ in the Criminal
Code
o SCC rejects the following proposition
▪ 1) the need for the proof of harm:
● Parliament can use the criminal law to prevent risk
of harm
● Proportionality between the effects and the objective
o The goal of the legislation is very important: to address racism
▪ This goal outweighs any negative effects
▪
Hate speech is not core speech
SASKATCHEWAN (HUMAN RIGHTS COMMISSION) v WHATCOTT
Facts
● Facts: Whatcott distributed flyers with homophobic content.
● Complaints were filed The Saskatchewan Human Rights Code (SHRC)
which prohibits "publication or display of any representation that
exposes or tends to expose to hatred, ridicules, belittles or otherwise
affronts the dignity of any person or class of persons on the basis of a
prohibited ground.”
Issue
● Does 14(1)(b) of the Code infringe 2(b)?
●
Holding
Reasoning
● In this case, hatred is different than Keegstra because the guy thinks he’s
trying to help the other group and doing it for their benefit – it’s much
more subtle
o The standard is lower in Whatcott because it’s a human rights
tribunal case
o In Keegstra, they were trying to capture the extreme end of hate –
obvious mens rea in that he was purposefully trying to make the
other group feel inferior
Takeaway:
● “where the term “hatred” is used in the context of a prohibition of
expression in human rights legislation, it should be applied objectively to
determine whether a 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.
o Objective standard
▪ What would a “reasonable person,” knowing the full
context and circumstances of the hateful speech, believe it
likely to raise the risk of discrimination or some type of
societal harm?
▪ There’s no good way to define who the reasonable person
is, so this is kinda stupid
Section 7 – Life, Liberty, & Security
REFERENCE RE SECTION 94(2) OF THE MOTOR VEHICLE ACT (BC)
● BC enacted Motor Vehicle Act with the aim of getting repeat offenders
Facts
off the roads.
● Guilt was established by the mere fact of driving. No MR, only AR.
● Fines and minimum prison sentences were imposed.
Issue
● Does 14(1)(b) of the Code infringe 2(b)?
Holding
Reasoning
● 1. Is the interest in life, liberty, or security of person triggered?
o YES: “Liberty interest” is triggered because prison is a possible
sentence.
▪ This is the easiest way to get liberty on the table
● 2. Is a PFJ violated?
o YES: This absolute liability offence offends fundamental justice 
the innocent should not be punished
● Note: absolute liability offences are not “by nature” contrary to s. 7
(according to the SCC).
● SCC also tells us:
o Public interest cannot be a factor in determining if an absolute
liability offence offends the principles of fundamental justice; it
can only be referenced as a justification under s. 1.
o Administrative expedience should only succeed as a justification
under s. 1 in exceptional circumstances (war, natural disasters, or
epidemics).
B(R) v CHILDREN’S AID SOCIETY OF MET. TORONTO
● An order was made pursuant of Ontario’s Child Welfare Act; it allows
Facts
the Children’s Aid Society to have wardship over at-risk children.
Parents (Jehovah’s Witnesses) refused to allow their child to have a blood
transfusion and the state took warship of their child.
Issue
● Violation of s. 7?
● Holding: No, while s.7 is triggered, a PFJ has not been violated
Holding
Reasoning
● SCC rejects extreme definitions of Liberty
o 1. Does not mean ‘unconstrained freedom’
▪ many contrains are for common good
▪ not all state-imposed limitations will invite Charter
scrutiny
o 2. Not does it mean physical constraint
▪ in free and democratic society we must make room for
autonomy
▪ make decisions of ‘fundamental personal importance’
● The majority recognizes that parents traditionally have a lot of autonomy
with respect to their children.
o But there are limits that arise in exceptional cases:
▪ The state can interfere when the parents’ conduct falls
below a “socially acceptable threshold.
● Is s. 7 triggered? YES
o Parents have a ‘liberty interest’
o Here they are not able to decide which medical treatment should
be administered
● 2. Does the interference by the state conform with PFJ
o YES there is a procedure in place that allows the parents’
concerns to be heard
R v MORGENTALER
● Facts: SCC dealing with challenge to CC restrictions on abortion
Facts
● Section 251 prohibited abortion, except in circumstances where a
therapeutic abortion committee (comprised of at least three doctors) from
an accredited hospital issued a certificate giving the opinion that the
continuation of the pregnancy would be likely to endanger the pregnant
woman’s life or health.
o This particular defense was not uniformly available, because of
the distribution of doctors and accredited hospitals across the
country.
o In 1976, only 60% of hospitals were eligible, and only 20% of
these actually had a committee and performed abortions.
o Dr. Morgentaler established and operated an abortion clinic in
Toronto, contrary to s. 251(1) of the Criminal Code.
● is s. 251(1) of the CC constitutional?
Issue
Holding
● No, it violates s. 7 (and isn’t saved by s. 1)
Reasoning
● Security of the Person – definition
o Dickson J: “security of the person” is a matter of physical or
mental integrity: ‘state interference with bodily integrity and
serious state-imposed psychological stress, at least in the criminal
law context, constitutes a breach of security of person’
▪ the psych stress must be serious
▪ you can talk about bodily integrity separate from psych
stress, and vice versa
● Holding: Security of Person
o Dickson J: “security of the person” is a matter of physical or
mental integrity:
▪ Delays constituted a breach of security
o Thus, s. 7 is not triggered, move on to PFJ
o The court held that the current scheme is “manifestly unfair”
o This breach was not in accordance with the principles of
fundamental justice, because the defence was illusory in many
instances:
▪ “One of the basic tenets of the legal system is that the
defence should not be so illusory or so difficult to attain
that it is practically illusory.”
● Women’s Rights?
o Only Wilson J argues that we are dealing with an issue of
women’s rights:
o “At the heart of this appeal is the question whether a
women can, as a constitutional matter, be compelled to
carry a foetus to term.”
o She locates a right to an abortion in a “liberty interest” to make
fundamental personal decisions: human dignity requires
personal autonomy.
RODRIGUEZ v CANADA (1993)
● Sue Rodriguez was suffering from ALS and wanted to have the right to
Facts
assisted suicide, which was prohibited by 241(b) of the Criminal Code
● Does 241(b) infringe s. 7?
Issue
● s. 7 interests are triggered (security of person, liberty), the resulting
Holding
deprivation is not contrary to PFJ
● Section 7 is triggered
Reasoning
o Security of Person:
o “the right to make choices concerning one’s own body, control
over one’s physical and psychological integrity, and basic human
dignity are encompassed within security of the person, at least to
the extent of freedom from criminal prohibitions which interferes
with these”
▪ Martin said she doesn’t really like this definition
● PFJ – THIS IS THE SECOND STEP (compare with Oakes)
o Here we consider the government’s objectives of “preserving
life” and “protecting the vulnerable”
o The majority rejects the following candidate offered by the
applicant:
▪ It is a PFJ that “the human dignity and autonomy of
individuals be respected, and that to subject her to needless
suffering in this manner is to rob her of her dignity.”
● PFJ: arbitrariness
o If the state’s objective is not achieved, then the deprivation will
not have a purpose: you must think about whether the
government’s purpose is realized in practice.
o Key question posed by the SCC: “is the blanket ban on assisted
suicide arbitrary or unfair in that it is unrelated to the state’s
interest in protecting the vulnerable, and that it lacks a foundation
in the legal tradition and society believes which are said to be
represented by the prohibition?”
o If the goal isn’t realized, then the exercise of power is
arbitrary
▪ But in this case, the court finds that the prohibition
does reach the goal
● PFJ
o The SCC insists that a PFJ cannot simply reflect the court’s
dislike of a statute
this is why the SCC argues that the above practices do
not undermine the value of “sanctity of life”; they are
“principled exceptions.”
● PFJ: aim of this law (i); limits of the law (ii)
o i) The law as it exists protects the vulnerable
▪ Vulnerable: those who feel life is unbearable at a certain
moment or those who see themselves as a burden.
o ii) It is difficult to carve out exceptions to the blanket prohibition
while still protecting the vulnerable law is a blunt instrument
▪ Because of these two considerations, it is determined that a
blanket prohibition is not arbitrary or unfair (if it was, it
would violate PFJ!)
o There’s vulnerable people on both sides of this argument; the
government is okay in choosing one side so long as it’s not
arbitrary
▪
GOSSELIN v QUEBEC (2002)
● The gov’t removes an age restriction in the Social Aid Act; Gosselin
Facts
brought a class action suit on behalf of all of those who were impacted by
the old scheme to recover on the social aid that they lost out on (which
was a “workfare” scheme for those under 30). CASE DEALS WITH
POSITIVE RIGHTS.
● was there violation of s. 7 (or s. 15)?
Issue
Holding
● No violation
Reasoning
● Security of Person
o Gosselin argued that “security of person” includes the right to
receive a particular level of social assistance.
o The majority says “no” (no positive right)
● No positive right
o “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 or security of the person.”
▪ It might happen one day, but these facts don’t call for
it
o Rather the cases to date have focused on making the state get out
of the way
o Martin: the less the right costs ($), the more likely it will be
upheld
● Dissent
o S. 7 does include positive dimension
▪ When rights come into conflict we can see that the state
does not simply have a negative duty to avoid interfering
with an individual’s rights, but a positive duty to legislate
in order to protect certain rights.
o s. 7 claim evaporates if there are other means available to achieve
the end sought (unlike a s. 15 claim) In this case, there were no
other means.
▪ the lack of funding “substantially impeded” their
enjoyment of their s. 7 rights.
▪ 170/month is not a living wage suffering that resulted
was documented, and “state imposed.”
● To determine if a right being called for is positive or negative, ask:
o Is the government being asked to get out of the way (Big M)
o Or are they asking the government to do something (spend
money, etc.)
o Often times cases includes both elements – so it’s not an easy
question
CANADIAN FOUNDATION FOR CHILDREN, YOUTH AND THE LAW v CANADA (AG)
● s. 43 of the Criminal Code allowed parents (or teachers) to spank children
Facts
(“spanking case”).
o “Every schoolteacher, parent or person standing in the place of a
parent is justified in using force by way of correction toward a
pupil or child, as the case may be, who is under his care, if the
force does not exceed what is reasonable under the
circumstances.”
Issue
● Is the provision constitutional?
● While s. 7 is triggered, the provision conforms with the PFJ.
Holding
Reasoning
● S. 7 is triggered
o Step 1
▪ S. 43 “adversely effects” the security of person interests of
children.
o Step 2: Thus we must ask: is s. 43 in accordance with the PFJ?
▪ The SCC rejects the following candidate for PFJ: the law
must serve the best interests of the child
▪ (Thus it is not a PFJ that the law must serve the best
interests of the child!)
● PFJ: is the law too vague/overbroad?
o S. 43 is not too vague or overbroad: the Criminal Code uses
language that demarcates a boundary between what is permitted
and what is prohibited.
o “Reasonable” force “under the circumstances” offers us a
workable standard (that is “objective”).
o Force can only be used in a “corrective” fashion.
o It not be dehumanizing, degrading or harmful.
o It excludes children under two and teenagers
● Dissent: Arbour
o S. 7 is too vague
MARTIN SAYS WE DON’T HAVE TO WORRY
ABOUT USING VAGUENESS ON EXAM – WE CAN
JUST STICK TO OVERBREADTH, GROSS
DISPROPORTIONALITY (?) ETC.
o S. 43 was not in accordance with PFJ
o  There is a lack of judicial consensus on what constitutes force
that is “reasonable under the circumstances,” thus s. 43 is
incapable of providing clear guidance to parents, teachers and
law enforcers.
▪
CANADA (AG) v PHS COMMUNITY SERVICES SOCIETY (2011, SCC)
● his case discuses a safe injection facility (Insight) in Vancouver’s
Facts
downtown east-side that provides medical supervision to intravenous
drug users. It has operated since 2003 under an exemption from the
prohibition on possession of illicit drugs in the Controlled Drugs and
Substances Act. In 2008 the federal Minister of Health failed to extend
Insight’s CDSA exemption, which brought about this action
● i) Does ss. 4(1) and 5(1) of the CDSA, which prohibit possession and
Issue
trafficking respectively, violate s. 7? (No)
● ii) Did the failure to extend the exemption to Insight violate s. 7? (YES)
●
Holding
Reasoning
● Issue i) Is the law constitutional
o The provisions dealing with possession (but not the trafficking
provisions) of the CDSA engaged the claimants’ s. 7 liberty
interests.
▪ This is because prison is on the table – always engages a
liberty interest
o Is law in accordance with PFJ
▪ “The availability of exemptions (under s. 56) acts as a
safety valve that prevents the CDSA from applying where
such application would be arbitrary, overbroad or grossly
disproportionate in its effects.”
● When discretion is used property, those who
should not be penalized are not
● The SCC rejects the gov’ts position (purpose and effect): causality
o Gov’t: the negative health risks are not caused by the gov’t.
o 1) “Choice argument”: (factual) the law is not the cause of death
or disease; personal choice is the cause.
▪ Martin: this is the better argument – it’s used a lot
▪ SCC: trial judge’s findings contradict the gov’t’s position;
in addition, addiction is a disease
o 2) Retributivist argument: (moral) point of the criminal law is to
punish law-breakers.
▪ SCC: we are dealing with purpose and effect; not right and
wrong
o 3) Policy argument: policy choice immune from gov’t review
▪ SCC: this argument is relevant at the PFJ or s. 1 stage.
● Issue ii) Is the failure to give an exemption constitutional
o In other words, has the Minister’s decision violated s. 7?
o SCC:
▪ The discretion vested in the Minister of Health is not
absolute.
▪ As with all exercises of discretion, the Minister’s decisions
must conform to the Charter.
▪ So we must turn to s. 7
● Step 1: Is s. 7 triggered
o The prohibition dealing with possession in the CDSA engages the
claimants’ s.7 right to liberty (staff) since its breach can result in
imprisonment.
o Insight’s clients’ s.7 rights to life and security of person are also
engaged (clients): the gov’t is denying them access to
“potentially lifesaving medical care.”
● Step 2: PFJ
o Arbitrariness: (must consider this PFJ in relation to the purpose
of the legislation as determined by the SCC)
▪ SCC: Purpose of the CDSA protect health/public safety
● The court themselves determine the law’s
purpose – not necessarily what the government
says or was stated in statute
▪ The exercise of discretion is arbitrary because the
purpose of the CDSA is to protect health and public safety
▪ Exempting Insite from the CDSA would further these
goals – denying the exemption does not.
o Gross Disproportionality:
▪ The Minister’s decision was also grossly disproportionate
in its effects:
▪ There is no discernable impact on public safety/health
▪ Therefore, denying the lifesaving services that Insite
provides is grossly disproportionate to the benefit of
having a uniform drug policy.
CANADA (AG) v BEDFORD
● The three applicants work in the sex trade; they are campaigning for the
Facts
decriminalization of prostitution.
● Are the criminal provisions that govern prostitution constitutional?
Issue
● The provisions are unconstitutional as they violate s. 7.
Holding
Reasoning
● TEST Precedent can be revisited if either of the following holds:
o WE DON’T NEED TO APPLY THIS TEST EVER, WE
JUST NEED TO KNOW ABOUT IT
o 1) There is a new legal issue raised.
▪ here the SCC looks at security of person; the former case
only dealt with “physical liberty”
▪ Prostitution Reference dealt with vagueness and the
permissibility of indirect criminalization
o 2) Where there is a change in the circumstances or evidence that
“fundamentally shifts the parameters of the debate.”
▪ This means a change in society’s attitude, etc.
● Security of Person
o The state is “imposing dangerous conditions on prostitution;
they prevent people engaged in a risky — but legal — activity
from taking steps to protect themselves from the risks”
● Causality: (the words of purpose and effect are used to capture this)
o The SCC rejects the argument that the risk flows from the
decision to become a prostitute, and not from the law.
o NEW STANDARD: ‘Sufficient Causal Connection’
▪ The “sufficient causal connection standard does not
require that the impugned government action or law be the
only or the dominant cause of the prejudice suffered by
the claimant, and is satisfied by a reasonable inference,
drawn on a balance of probabilities.”
● Link must be “real,” not “speculative.”
o S. 210 – keeping or being found in a common bawdy house
▪ On a “balance of probabilities . . . the safest form of
prostitution is working independently from a fixed
location.”
▪ This provision also prevents a resort to “safe houses.”
o S. 212(1)(j) living on the avails of prostitution
▪ makes it a crime for anyone to supply a service to a
prostitute.
▪ Thus, they cannot take steps to reduce the risk because of
the existence of this law.
● i.e. prostitutes cannot hire bodyguards
o s. 213(1)(c): “Communicating in a public place”
▪ “the law prohibits communication that would allow street
prostitutes to increase their safety.”
▪ Court: this law prevents prostitutes from screening their
clients.
o Court finds security of person is triggered by all three provisions
▪ It is satisfied that the government had reasonable
interference, on a balance of probabilities, in risking the
security of sex workers
▪ This satisfies a sufficient causal connection
● PFJ applied
o s. 210: “keeping or being found in a common bawdy house”
▪ Gross disproportionality:
● “The harms identified by the courts below are
grossly disproportionate to the deterrence of
community disruption that is the object of the
law. Parliament has the power to regulate
against nuisances, but not at the cost of the health
safety and lives of prostitutes.”
o s. 212(1)(j): “living on the avails of prostitution”
▪ PFJ: It is overbroad in relation to its purpose, to target
“pimps.”
▪ “The law punishes everyone who lives on the avails of
prostitution without distinguishing between those who
exploit prostitutes (such as controlling and abusive pimps)
and those who could increase the safety and security of
prostitutes (for example, legitimate drivers, managers, or
bodyguards).”
▪ Government argument: a blanket ban is needed to capture
pimps; if there’s any gaps/holes pimps will simply take
advantage of them as loopholes
o s. 213(1)(c): “communicating in public for the purpose of
prostitution”
▪ PFJ: Gross disproportionality:
▪ Purpose: to prevent nuisance
▪ The application judge weighed the “harm” against this
purpose and held that the law was grossly
disproportionate. The SCC agrees.
CARTER v CANADA (AG) 2015
● Suicide has been legal in Canada since 1972; however assisted suicide
Facts
remained illegal.
o 241(b) of the Criminal Code provided that everyone who aids or
abets a person in committing suicide commits an indictable
offence
o s. 14: no person may consent to death being inflicted on them.
● are the CC provisions constitutional?
Issue
● no, they violate s. 7 (can’t be upheld under s.1)
Holding
Reasoning
Revisiting Rodriguez (TEST from Bedford)
● Trial courts may reconsider settled rulings of higher courts in two
situations (Bedford)
o (1) where a new legal issue is raised:
▪ We have a new understanding of “overbreadth” and
“gross disproportionality”
o (2) where there is a change in the circumstances or evidence
that “fundamentally shifts the parameters of the debate”:
Trial judge holds that it is possible to carve out
exceptions without placing the “vulnerable” at risk (thanks
to the fact we have been able to study permissive
jurisdictions)
● evidence from the Netherlands
● Liberty and Security: key holding
o “We therefore conclude that ss. 241(b) and 14 of the Criminal
Code, insofar as they prohibit physician-assisted dying for
competent adults who seek such assistance as a result of a
grievous and irremediable medical condition that causes
enduring and intolerable suffering, infringe the rights to liberty
and security of the person.”
▪ This is a narrow scope
PFJ: options/focus
● The SCC reasserts the aim at this stage in the analysis: they will focus on
the impact on the rights of the claimant, not on society as a whole
(Bedford).
● A) What is the object of the legislation? Before turning to the potential
PFJ, we must characterize the “object” or “purpose” of the legislation
o The court rejects the government’s proposed purpose: “the
preservation of life.” The SCC argues that this broad
characterization of the object of the legislation would make it hard
to say that the “means” chosen are disproportionate or overbroad.
▪ Martin: the court is saying if we accept the government’s
broad purpose, the individual can’t win
▪ They accept the following, narrow, purpose (which
explicitly favours the individual over the gov’t):
● B) Turn to the PJFs:
o is the law arbitrary in reference to the purpose?
▪ “Arbitrariness targets the situation where there is no
rational connection between the object of the law and the
limit it imposes on life, liberty or security of the person”
▪ “A total ban on assisted suicide clearly helps achieve this
object. Therefore, individuals’ rights are not limited
arbitrarily.”
o is the law overbroad in reference to its purpose? KEY PFJ
▪ A law “goes too far by denying the rights of some
individuals in a way that bears no relation to the object”
(Bedford)
● In this case: Ms. Taylor does not fall into the
category of a “vulnerable person who might be
induced to end her life.”
● Rather, she has a “rational and persistent wish”
to end her life.
● The law is deemed to be overbroad and hence it
is deemed to be inconsistent with the Charter.
▪
▪
Martin: this argument assumes that the law is not a blunt
instrument
▪ According to SCC, the following is left to s. 1
● “Canada there [in Bedford] as here argued that the
line between exploitative and non-exploitative
relationships was blurry, and that, as a result, the
provision had to be drawn broadly to capture its
targets. The Court concluded that that argument is
more appropriately addressed under s. 1.”
● This is an argument about “risks” and hence seeks
to justify the existing “blanket ban.”
o is the impact of the law grossly disproportionate in relation to its
purpose?
▪ Court does not address this