The Case of R. v. Oakes
David Edwin Oakes was charged with possession of drugs, and possession with the intent
to traffic. At the time of the trial, a person charged with drug possession was automatically
charged with possession with the intent to traffic.
If a person was found guilty of possession of drugs, section 8 of the Narcotic Control Act
(“NCA”) placed the onus on the person charged to prove that there was no intent to traffic. If the
accused could not prove lack of intent, the accused would automatically be found guilty of the
charge. Mr. Oakes challenged this section of the NCA as an infringement of his s.11 (d) Charter
right, the right to be presumed innocent.
The Court found that s. 8 of the NCA violated s.11 (d) of the Charter. The Court then
considered whether the government could justify this infringement under s. 1 of the Charter.
Section 1 requires the government to show that the law in question is a reasonable limit on
Charter rights, which can be demonstrably justified in a free and democratic society. The Court
found that the government failed to satisfy s.1 of the Charter, and as a result, held that s. 8 of the
NCA was of no force or effect.
THE OAKES TEST
The Oakes Test is a legal test created by the Supreme Court of Canada in the case R. v. Oakes
(1986). R. v. Oakes provided the Court with the opportunity to interpret the wording of section 1
of the Charter and to explain how section 1 would apply to a case. The result was the Oakes Test
– a test that is used every time a Charter violation is found.
A SECTION 1 ANALYSIS: THE OAKES TEST
Once a Charter infringement has been found, the Court will consider each of the three main steps
in a section 1 analysis, known as the Oakes Test. The government must prove each step in this
test.
1. Prescribed by Law
The limitation of any Charter right must be prescribed by law. This means that the
limitation must be legal, and be part of a law, statute, or regulation that is within the
jurisdiction of the level of government that passed it. The law must be clear (not vague)
and accessible to citizens so that they may know what kinds of activities are allowed and
not allowed.
2. Pressing and Substantial
The government must prove that the objective of the law is pressing and substantial. In
other words, the purpose of the law must be important to society.
3. Proportionality
This step in the Oakes Test contains three sub-steps. The concept of proportionality refers
to whether the government, in the course of achieving its legislative objectives, has
chosen proportional or relative ways, to achieve those objectives. In other words,
government has to find reasonable ways to achieve, or implement, its legislation.
Source: O J E N , . " H a n d o u t : S e c t i on 1 o f t h e C h a rt e r & t h e O a k e s T e s t . " On t a r i o J u s t i c e E d u c a t i o n
N e t w o r k . OJ E N , 2 0 1 0 . W e b . 2 1 M a r 2 0 1 1 . < h t t p :/ / ww w. o j e n . c a / r e s o u rc e / 9 8 0 > .
The Case of R. v. Morgentaler, 1988
On January 28, 1988, the Supreme Court of Canada (S.C.C.) gave its decision in R. v.
Morgentaler. While a criminal law case, Morgentaler examined women’s rights in the context of
the Charter of Rights and Freedoms. In Morgentaler, the federal government’s criminal
legislation governing abortions was ruled unconstitutional. Women had the same control of their
bodies as did men.
Morgentaler and his two co-accused were licensed physicians who ran a clinic providing abortion
services to women. The relevant former provision of the Criminal Code section 251 (4) - required
that abortions first be approved by a therapeutic abortion committee at an accredited or approved
of hospital. The procedure had to occur at that hospital. All three physicians were opposed to the
legislative regime prescribed by Parliament and had opened their clinic in defiance of the law.
They were then charged with procuring abortions under the relevant provisions of the Code:
421(1)(d) and 251(1). Before they entered their pleas, the doctors asked the trial court to quash
the charges on the argument that they infringed sections 2(a), 7, and 12 of the Charter which
read:
2(a). Everyone has the following fundamental freedoms: freedom of conscience and religion.
7.
Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice; and
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
The doctors argued that they were:
1. not being allowed to follow their consciences under section 2;
2. were being prosecuted under laws that were too vague, which deprived them of
fundamental justice; and that
3. women being denied an abortion were being subjected to cruel and unusual punishment,
as the regulatory scheme developed under the Code had the net effect of denying them
the right to the medical procedure they wanted
Source:
Al b e r t a La w F o u n d a t i on , . "R . v . M o r g e n t a l e r . " C e n t r e f o r C o n s t i t u t i o n a l S t u d i e s . Al b e r t a La w
F o u n d a t i o n , Un i v e r s i t y o f A l b e r t a , 2 0 0 8 . We b . 2 1 M a r 2 0 1 1 .
< h t t p : / / ww w. l a w. u a l b e r t a . c a / c e n t r e s / c c s / ru l i n g s / r v m o r g e n t a l e r . p h p > .
The majority of the Supreme Court of Canada judges ruled that the Criminal Code’s restrictions
on abortion were unconstitutional since they increased the health risks to women depriving them
of the right to security of the person (s-7). Since this decision no abortion law has been enacted
Source:
O J E N , . " C a s e s t h a t h a v e C h a n g e d S o c i e t y. " O n t a r i o J u s t i c e E d u c a t i o n N e t w o r k . OJ E N , 2 0 1 0 .
Web. 21 Mar 2011.
< h t t p : / / ww w. o j e n . c a / s i t e s / o j en . c a / f i l e s / s i t e s / d e f a u l t / fi l e s / r e s o u r c e s / C a s e s % 2 0 t h a t % 2 0 Ha v e % 2 0 C h a n g e d
% 2 0 S o c i e t y% 2 0 E n g l i s h . p d f> .
The Case of R. v. Keegstra, 1990
Facts
Mr. Keegstra started teaching high school in the early 1970s in the small town of Eckville,
Alberta. He had been a teacher in the town for about 10 years when his teachings came under
scrutiny. After reading her son’s notes from Mr. Keegstra’s social studies class, a parent
complained to the local school board. Mr. Keegstra had been teaching his students racially
prejudiced material targeting Jewish people. He taught his students that Jewish people seek to
destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution. He
also told his students that Jewish people “created the Holocaust to gain sympathy”. Mr. Keegstra
expected his students to include these teachings in class and on exams. If they did, they received
good marks. If they did not, their marks suffered. A few months after the complaint, Mr. Keegstra
was dismissed.
Wilful Promotion of Hatred
In 1984, Mr. Keegstra was charged under section 319(2) of the Criminal Code with wilfully
promoting hatred against an identifiable group by communicating anti-Semitic statements to his
students.
Criminal Code of Canada
319. (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any
identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
319. (3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based
on a belief in a religious text;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on
reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred
toward an identifiable group in Canada
Sections 319(7) and 318(4) provide definitions of some of the terms used in the above quoted sections:
• Communicating is defined as communicating by telephone, broadcasting or other audible or visible means.
• Identifiable group is any section of the public distinguished by colour, race, religion, ethnic origin, or sexual orientation.
• Public place is any place to which the public have access as of right or by invitation, express or implied.
• Statements include words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or
other visible representations.
Freedom of Expression
One of the fundamental freedoms protected by s. 2(b) of the Charter is the “freedom of thought,
belief, opinion and expression, including freedom of the press and other media of
communication.” Even prior to the enactment of the Charter, Canadian courts recognized that
freedom of expression was of crucial importance in a free and democratic society.
The scope of freedom of expression is very wide. Canadian courts have stated that expression will
be protected if it is focused on:
(i) seeking and attaining truth;
(ii) encouraging participation in social and political decision-making; and
(iii) cultivating diversity in forms of individual self-fulfillment and human flourishing.
The Trial Decision
At Mr. Keegstra’s trial, his lawyer argued that s. 319(2) of the Criminal Code violated Mr.
Keegstra’s right to freedom of expression. The trial judge disagreed, noting that the Charter
provides individuals with equal protection and benefit of the law without discrimination on the
basis of colour, race, religion, or ethnic origin. The wilful promotion of hatred against an
identifiable group would violate that person’s equality rights (s. 15 of the Charter). On this basis,
the trial judge held that s. 319(2) did not infringe s. 2(b) of the Charter and the jury convicted Mr.
Keegstra of wilful promotion of hatred.
Appeal to the Alberta Court of Appeal
Mr. Keegstra appealed his conviction. The Court of Appeal agreed with Mr. Keegstra. It found
that statements which the speaker knows to be false are not protected by the Charter, however
section 2(b) does protect “innocent and imprudent speech”. Therefore, because section 319 could
apply to false statements that the person might not know are false, the Court found that it violated
the right to freedom of expression.
The Court went on to determine that the violation of s. 2(b) was not justified under s. 1 of the
Charter.
Appeal to the Supreme Court of Canada
The Crown appealed the Court of Appeal’s decision to the Supreme Court of Canada.
Four out of the seven judges disagreed with the decision of the Alberta Court of Appeal.
Chief Justice Dickson wrote the majority decision.
Is Freedom of Expression Infringed?
To determine whether Mr. Keegstra’s freedom of expression was infringed, the
majority applied the two-step analysis for s. 2(b) cases. On the first step, the majority found
that the expression conveyed meaning and was therefore protected by s. 2(b). The fact that
the statements were offensive was irrelevant. On the second step, the majority determined
that the very purpose of s. 319 of the Criminal Code was to restrict certain kinds of
expression. Therefore, the majority found that s. 319(2) of the Criminal Code infringed
section 2(b) of the Charter.
In coming to this conclusion, the majority rejected the argument that the wilful
promotion of hatred is like a violent activity, and therefore should not be treated as an
expression issue. Mr. Keegstra’s expression consisted of words, while violence is expression
communicated directly through physical harm. For this reason, even hate propaganda is
expression within the meaning of s. 2(b).
The majority also rejected the argument that hate propaganda does not fall within the
protection of s. 2(b) because it amounts to threats of violence. Threats of violence are
expression and their suppression must be justified under s. 1 of the Charter.
Is the Violation of Freedom of Expression Justified under Section 1 of the Charter?
The majority applied the Oakes Test to determine if the violation of Mr. Keegstra’s
freedom of expression was justified under s. 1 of the Charter. It concluded that Parliament’s
objective in
Source:
O J E N , . " F R E E D OM O F E X P R E S S IO N , W IL F U L P R O M O T IO N O F H A T R E D AN D T H E
C H AR T E R O F R IGH T S AN D F R E E D O M S : R . v. KE E GS T R A. " O n t a r i o J u s t i c e E d u c a t i o n N e t w o r k .
OJEN, 2010. Web. 21 Mar 2011.
< h t t p : / / ww w. o j e n . c a / s i t e s / o j en . c a / f i l e s / s i t e s / d e f a u l t / fi l e s / r e s o u r c e s / Ke e g s t r a % 2 0 E n g l i s h . p d f > .
The Case of Vriend v. Alberta [1998] 1 S.C.R. 493
Addresses S. 15 of the Charter
Legislatures (government bodies) which infringe Charter rights must demonstrate that the
infringement is reasonable
Mr. Vriend became a full time college employee in Alberta in 1988. In 1990, when asked
by the college president, he disclosed he was a homosexual. In early 1991 the college
adopted a position on homosexuality and Mr. Vriend was asked to resign. He did not and
he was fired for non-compliance with the college's policy on homosexual practice.
Mr. Vriend attempted to file a complaint with the Alberta Human Rights Tribunal but could not
because under the Individual's Rights Protection Act (IRPA), sexual orientation was
not a protected ground. Mr. Vriend and others filed a motion in court. The trial judge
found that the omission of protection against discrimination of sexual orientation was an
unjustifiable violation of s. 15 of the Charter. She ordered that the words "sexual
orientation" be read in to the IRPA as a prohibited ground of discrimination. The Court of
Appeal allowed the government's appeal.
The SCC held that the Charter did apply to the case. The "omission" was an act of the
legislature. Under inclusiveness did not alter the fact that the IRPA was under scrutiny
and not the activities of the private entity. The rights enshrined in s.15 (1) of the Charter
are fundamental to Canada. In order to achieve equality the intrinsic worthiness and
importance of every individual must be recognized regardless of personal characteristics.
Legislatures ought to be accorded deference, however this does not give them
unrestricted license to disregard an individual's Charter rights. When the Charter was
introduced in 1982, Canada went from a system of Parliamentary supremacy to
constitutional supremacy. Canadians were given individual rights and freedoms, which
no government could take away. However rights and freedoms are not absolute,
governments and legislatures can justify qualification and infringement of constitutional
rights under s. 1.
Alberta failed to demonstrate any reasonable basis for excluding sexual orientation from the
IRPA. Rather than find the whole of the IRPA unconstitutional, the Court chose, as the least
intrusive and expensive mechanism, to read in, as had been ordered by the trial judge, the words
"sexual orientation".
Source: O J E N ,
. "C o u rt C a s es Il l u s t r a t i n g S o m e Ke y V a l u e s o f t h e J u s t i c e S ys t e m . " O n t a r i o J u s t i c e
Education Network . OJEN, 2010. Web. 21 Mar 2011.
< h t t p : / / ww w. o j e n . c a / s i t e s / o j en . c a / f i l e s / s i t e s / d e f a u l t / fi l e s / r e s o u r c e s / C ou r t % 2 0 C a s e s % 2 0 Il l u s t r a t i n g % 2
0 S o m e % 2 0 Ke y% 2 0 Va l u e s % 2 0 o f % 2 0 t h e % 2 0 J u s t i c e % 2 0 S ys t e m . p d f> .
The Case of Sue Rodriguez v. British Columbia (Attorney General)
Constitutional law -- Charter of Rights -- Life, liberty and security of the person -Fundamental justice – Terminally ill patient seeking assistance to commit suicide –
Whether Criminal Code provision prohibiting aiding a person to commit suicide infringes s. 7 of
Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of
Charter -- Remedies available if Charter infringed -- Criminal Code, R.S.C., 1985, c. C-46, s.
241(b).
Constitutional law -- Charter of Rights -- Equality rights -- Discrimination on basis of
physical disability -- Terminally ill patient seeking assistance to commit suicide -- Whether
Criminal Code provision prohibiting aiding a person to commit suicide infringes s. 15(1) of
Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of
Charter -- Remedies available if Charter infringed -- Criminal Code, R.S.C., 1985, c. C-46,
s. 241(b).
Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Terminally ill
patient seeking assistance to commit suicide -- Whether Criminal Code provision prohibiting
aiding a person to commit suicide infringes s. 12 of Canadian Charter of Rights and Freedoms -If so, whether infringement justifiable under s. 1 of Charter -- Remedies available if Charter
infringed -- Criminal Code, R.S.C., 1985, c. C-46, s. 241(b).
The appellant, a 42-year-old mother, suffers from amyotrophic lateral sclerosis. Her
condition is rapidly deteriorating and she will soon lose the ability to swallow, speak, walk and
move her body without assistance. Thereafter she will lose the capacity to breathe without a
respirator, to eat. Her life expectancy is between 2 and 14 months. The appellant does not wish to
die so long as she still has the capacity to enjoy life, but wishes that a qualified physician be
allowed to set up technological means by which she might, when she is no longer able to enjoy
life, by her own hand, at the time of her choosing, end her life.
The appellant applied to the Supreme Court of British Columbia for an order that s.
241(b) of the Criminal Code, which prohibits the giving of assistance to commit suicide, be
declared invalid on the ground that it violates her rights under ss. 7, 12 and 15(1) of the Charter,
and is therefore, to the extent it precludes a terminally ill person from committing "physicianassisted" suicide, of no force and effect by virtue of s. 52(1) of the Constitution Act, 1982.
The court dismissed the appellant's application and the majority of the Court of Appeal affirmed
the judgment.
Source:
Human Rights Commision , . "Rodriguez v. British Columbia (Attorney General),
[1993] 3 S.C.R. 519." Bills of Rights Comparative Law Materials . Human Rights Commision,
26092008. Web. 22 Mar 2011.
<http://www.hrcr.org/safrica/freedom_security/rodriguez_bc.html>.