Humphrey 1
CHARTER ANALYSIS
1. INTERPRETING RIGHTS
1. Should use a contextual and broad and purposive approach (Hunter v. Southam, Big M Drug
Mart).
a. This should be in line with the living tree doctrine – broad and purposive, not frozen
rights.
b. Purposive because we want to know the purpose underlying the right or to have
delineated the nature of the interest that it is meant to protect (Hunter v. Southam).
i. Dickson: The Charter “is a purposive document. Its purpose is to guarantee and
protect, within the limits of reason, the enjoyment of the rights and freedoms it
enshrines. It is intended to constrain governmental action inconsistent with those
rights and freedoms; it is not in itself an authorization for governmental action.”
c. Contextual (Edmonton Journal) – because rights or freedoms may have different values
depending on the context…
2. Should use aids to interpretation.
a. Interpretive provisions
i. s.27 – multiculturalism
ii. s.28 – gender equality
b. Parliamentary and committee debates
i. Would lead to frozen rights so should be given minimal weight. Don’t want to
stunt growth of living tree.
c. Jurisprudence re: Bill of Rights
i. Limited relevance in Charter cases because Bill and Charter have different
constitutional statuses.
d. Comparative and international sources
i. Looked at American Bill of Rights but with caution – still big differences
between US and Canadian constitutions (Keegstra).
ii. Looked at international and European sources too because there wasn’t much to
go on in terms of Canadian cases on rights. Had to start somewhere (Reference re:
Public Service Employee Relations Act (Alberta)).
2. APPLICATION OF THE CHARTER (SECTION 32)


S.32: The Charter applies to the federal and provincial governments.
o Has been interpreted to mean that it applies to governments and does not apply to
private citizens.
Therefore, have to define what constitutes “government.”
Dolphin Delivery




Dispute between three private actors.
Court rules that the Charter does not apply and that a court order does not bring it into the
realm of government action.
 Re-affirmation of Charter applying to government but not to private actors.
 Held that Charter didn’t apply to the common law when it’s a common law case between private
parties.
Humphrey 2
o
o
From a political science perspective, the judiciary + executive + legislature = government.
But if court was considered government then Charter would apply to all private litigation –
floodgates argument.
Hill v. Church of Scientology of Toronto


Stressed the importance of informing the development of the common law by taking Charter
values into account.
Helps to move the common law in the direction of the Charter.
A) Defining government
1. Government actors are definitely considered to be the government.
a. Legislators/legislation
b. Executive
c. Administrative
2. But what about independent actors carrying out governmental acts? Lots of cases where
we’re unsure:
 Universities/schools? Hospitals? Crown corporations? (Generally not Crown
corporations)
 Set out criteria to determine what constitutes government for Charter application:

Controlled by government (McKinney)
o McKinney
 Ruled that universities were not controlled by government.
  But, Charter applies to community colleges (see Douglas College).
o Stoffman
 Hospital BoD appointed by government, funded by government, and carry out
government policy…
 But, day-to-day controlled by BoD – therefore hospitals not controlled by
government.
  But, Charter applied to hospitals in Eldridge (re: carrying out government
program).
o Greater Vancouver Transportation Authority
 Charter applies because substantially controlled by a government entity
(municipal government).

Exercising government functions
o Municipalities are considered as bodies exercising government functions (Godbout v.
Longueuil).

Non-state actors implementing government programs and exercising statutory powers
of compulsion
o Eldridge (re: implementing government programs)
 Hospitals covered by Charter in failure to provide interpreters for deaf patients
because hospital engaged in delivering health services (which are government
programs).
o Slaight (re: statutory powers of compulsion)
 Arbitrator given statutory power to compel positive letter of reference in labour
dispute.
o Whatcott (re: statutory powers of compulsion)
Humphrey 3
o
 Statutory authority given to university security.
Why is this important?
 Because governments shouldn’t be able to contract out of the Charter.
Government should retain responsibility when delegating execution of
government services to private actors.
 Because these bodies are authorised by statute to do things private actors
couldn’t normally do.
3. What about government inaction?
 Applies to all matters “within the authority” of the provincial and federal government
(s.32).Argument that Charter only applied to actions, not failure to act – rejected by court.
 Vriend
o Active omission to exclude sexual orientation – omission was in itself an act.
 Dunmore
4. What about the common law?
 Dolphin Delivery
o Didn’t want the Charter to apply to purely private actors via the common law.
 Hill v. Church of Scientology of Toronto
o Stressed the importance of informing the development of the common law with
Charter values.
 Took account of Charter values to move the common law in the direction of the
Charter.
B) Territorial limits of the Charter


Normally, the Charter only applies in Canada but s.32 just reads that it applies to “all matters
within the authority” of the Canadian government.
Have sought to hold the government accountable under the Charter for their actions abroad all
the while respecting the principles of comity and sovereignty.
o Cook
 Applied to actions of Canadian detectives interrogating a suspect in the US as part
of a government case.
o Hape
 Court limited application used in Cook.
 Respect for the principle of comity – when one state looks to another for help in
criminal matters, it must respect the way in which the other state chooses to
provide the assistance within its borders.
o Khadr (2008)
 Court ruled that Charter applied outside Canada as a result of the international
human rights exception.
 Canadian officials participated in actions that violated the country’s obligations
under international law.
3. DOCTRINE OF STANDING

Meant to limit who can challenge the constitutionality of a law.
Humphrey 4
o
Does the individual or group seeking to challenge have a sufficient interest in the issue so
much so that they should be allowed to challenge the law?

Can have private interest standing – if the law affects you directly.
o e.g. – Challenging constitutionality of euthanasia law – it is directly impeding you from
accessing assisted suicide, so you would have private standing.
o In sex workers case, a prostitute whose life was being impacted by these laws could have
private standing. (K was found not to have private standing because she was not currently
active in industry.)

Can have public interest standing (p. 55)
o Leading case is Borowski. Citizen challenging law on abortion as a concerned citizen –
doesn’t directly affect him so doesn’t satisfy private interest standing test.
o Court set out test for public interest standing.
 Serious judicious issue
 Have genuine interest as a citizen in the validity of the law
 No other reasonable or effective way to bring the issue before the Court

Cromwell loosened up the third aspect in Downtown Eastside Sex Workers – it’s not that there is no
other way for it to come forward, but that this is a reasonable and effective way to bring the case
forward.
4. FREEDOM OF RELIGION (SECTION 2(a))
Where is freedom of religion protected?





Preamble – recognises the supremacy of God
Section 2(a) – freedom of conscience and religion
Section 15 – equality provision, no discrimination based on religion
Section 27 – Charter should be interpreted in accordance with Canada’s multicultural heritage
Unwritten principles – in Secession Reference, principle of respect for minorities (religious is one)
Two types of claims

(1) State cannot impose preferred religion on others (establishment clause)
o Ville de Saguenay
 Prayer
 Held that prayer before city council didn’t constitute an infringement of
the state’s religious neutrality.
 Even if it had constituted an infringement, it would have been trivial.
 Symbols
 Bouchard-Taylor Commission: Must try to distinguish between what is a
form of establishment of religion and what is simply part of society’s
historic heritage.
 Religious symbols are compatible with secularism when they serve as a
historic reminder and not as a sign of religious identification by a public
institution.
Humphrey 5

o
o

This is the case here – even if it had been an infringement, would have
been trivial.
 Also, no demonstration of harm.
Big M Drug Mart
 Lord’s Day Act deemed to be an imposition of Christian values on whole of society.
SL v. Commission scolaire des chênes
 Religious/cultural education class did not constitute state sponsorship of a
particular religious tradition. If it had, would have amounted to discrimination.
 Even if there had been state sponsorship, establishing an infringement must be
determined objectively. Parents were still free to pass on beliefs to children.
(2) People must not face barriers to engaging in minority religious practices (free exercise
clause)
o Often, a law that appears harmless on its face will have effects on the freedom to
engage in religious practice.
o Multani
 Didn’t want to strike down no weapons rule, so allowed for reasonable
accommodation
o Hutterian Brethren
 Critiqued because seemed that it went against trend of allowing for reasonable
accommodation.
 Only 250 people asking for an exemption (while 700,000 didn’t have licenses at all)
– accommodation should have been possible.
o Amselem
 Sets out the test for freedom of religious practice.
Test for Freedom of Religion (Amselem)

Definition of religion
o Involves particular and comprehensive system of faith and worship
o Belief in a divine, superhuman, or controlling power
o “In essence, religion is about freely and deeply held personal convictions or beliefs connected to
an individuals’ spiritual faith and integrally link to one’s self-definition and spiritual fulfilment,
the practices of which allow individuals to foster a connection with the divine or with the subject
or object of that spiritual faith.” (para 39)

Definition of freedom of religion
o Expansive definition, revolving around notion of personal choice and individual autonomy
and freedom.
o “…freedom of religion consists of the freedom to undertake practices and harbour beliefs, having
a nexus with religion, in which an individual demonstrates he or she sincerely believes or is
sincerely undertaking in order to connect with the divine or as a function or his or her spiritual
faith, irrespective of whether a particular practice or belief is required by official religious
dogma or is in conformity with the position of religious officials.” (para 46)
 Includes:
 Objective and personal notions of religious beliefs
 Obligatory and voluntary expressions of faith
 It’s about the religious/spiritual essence that warrants protection

Steps:
Humphrey 6
o
o
o
(1) Does the person have a religious belief as per the definition of freedom of religion
(supra)?
(2) Is that person sincere in their belief?
(3) Has there been enough of an interference with the exercise of the implicated right so as
to constitute an infringement of freedom of religion?
 Infringement must be objectively determined (SL c. Commission scolaire des chênes)
 Consider whether the infringement stems from the law’s purpose or its effects (see
distinction, supra).
5. FREEDOM OF EXPRESSION (SECTION 2(b))
Why protect expression?




R v Keegstra
o Democracy: Instrumental in promoting free flow of ideas, essential to democracy.
 Limit  But, then only political expression should be free, no?
o Markertplace of ideas: Essential to the search for truth.
 Limit  No guarantee that free expression of ideas will lead to truth.
o An end in itself: Value essential to the kind of society we want to have, right for people to
form own opinions/beliefs and express them.
Moon
o Because of the value of truth, democracy, and individual autonomy.
o Importance of communicative relationship – social character of freedom of expression.
Irwin Toy
o Freedom of expression is fundamental “because in a free, pluralistic and democratic
society we prize a diversity of ideas and opinions for their inherent value both to the
community and to the individual.” (976)
Problems with these justifications
o Search for truth assumes that people are always using freedom of expression for good.
May actually lead to untruths.
o Marketplace is assumed to be equal, but it often isn’t. Not everyone can participate
equally.
Test for Freedom of Expression (Irwin Toy)
1. Is the activity within the sphere of conduct protected by freedom of expression?
a. Anything that attempts to convey meaning is “expressive” and falls within the scope
of the guarantee of freedom of expression.
b. Limit: Not within in scope if it involves violence or threats of violence because
violence undermines the very values that section 2(b) seeks to protect.
2. Was the purpose/effect of the government action to restrict the freedom of
expression?
a. Purpose
Humphrey 7
i. If the government’s purpose is to restrict the content of expression by
singling out a particular meaning or a particular form of expression in
order to control access to its meaning then it has restricted the right.
1. Example: A rule against handing out pamphlets, even if the goal is to
reduce littering, is still tied to content.
ii. If the government is just trying to control the physical consequences of
certain human activity, then it’s not about controlling expression.
1. Example: A rule against littering, not tied to content.
iii. So, question is whether it’s about the meaning of the activity/the influence
of that meaning on others or only the direct physical result of the activity.
b. Effects
i. Even if purpose not to restrict conveying meaning, this could still be the
effect.
ii. Burden on plaintiff to show that government restricted free expression.
iii. Must demonstrate that his/her activity was to convey a meaning that is
reflective of the principles underlying freedom of expression:
1. Pursuit of truth
2. Participation in social/political community
3. Individual self-fulfilment and human flourishing
3. Is the limit on freedom of expression justified?
a. Section 1 analysis
i. Pressing and substantial objective
ii. Rational connection test
iii. Minimal impairment
iv. Proportionality between law’s objective and effects
b. Cases also demonstrate limits to expression
i.
Hatred: Involves “unusually strong and deep-felt emotions of detestation,
calumny and vilification” and presence of “hallmarks of hatred” (Rothstein in
Taylor).
1. Keegstra – Hate speech is a valid limit on the freedom of expression.
a. Dissent from McLachlin, sees criminal law as ineffective and
excessive response to hate speech. Insists that infringement of
freedom of expression is serious.
2. Whatcott – Affirmed Keegstra re: limits on hate speech.
ii.
Advertising directed at children
a. Irwin Toy
6. LIFE, LIBERTY & SECURITY OF THE PERSON (SECTION 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.”
o Presence of an inherent limiting clause that renders section 1 less important.
Humphrey 8
o Structure of section 7 means that it can violate the right to life, liberty and security of the
person so long as it does so in a way that conforms to the principles of fundamental justice.

Burden of proof rests with the claimant to prove a violation of section 7 and that it is not in
accordance with the principles of fundamental justice.
Test for Violation of Life, Liberty, or Security of the Person
1. Does the law or government action interfere with the life, liberty, or security of the
person?
a. Any law involving a prison term interferes with liberty (Reference re: Motor Vehicles Act,
Incite).
b. State interference with bodily integrity and serious state-imposed psychological
stress is a two-fold breach of security of the person (Morgentaler).
i. Dickson also mentioned being subjected to law that doesn’t resonate with one’s
own aspirations/priorities as a violation of liberty.
ii. Wilson mentioned that liberty is about being able to make one’s own choices
about the good life and right and wrong.
iii. Beetz mentioned that a pregnant woman’s life is not secure without access to
timely medical procedures.
c. Withholding beneficial health services infringes on the life of the person (PHS).
d. Where a law creates deprives a person of autonomy and results in
physical/psychological pain, a deprivation of the right to security of the person is made
out (Rodriguez).
e. Even though a law is designed to protect life, it can still infringe on section 7 by violating
liberty (Rodriguez).
f. Choosing to earn a living through prostitution is a liberty (Bedford).
g. Refusing to grant exception to under Controlled Drug & Substances Act was a violation of
security of the person because it put users’ health at risk/made them at risk of dying
(Incite).
2. Is there a causal connection?
a. Need for “a sufficient causal connection between the state-caused [effect] and the prejudice
suffered by the [claimant].” (Bedford)
i. This flexible standard allows for the circumstances of each case to be taken into
account.
3. Is the deprivation in accordance with the principles of fundamental justice?

Fundamental justice
o Reference re: BC Motor Vehicles Act
 The principles of fundamental justice are to be found in the basic tenants of
our legal system.
 They are not limited to solely procedural guarantees.
 This case, principle at play is that the innocent should not be punished.
o Morgentaler
 Defence to a criminal charge should not be illusory or so difficult to
attainthat it is practically illusory.
o Rodriguez
Humphrey 9



Fundamental principles are ‘fundamental’ “in the sense that they would have
general acceptance among reasonable people.” (1184)
 General consensus re: sanctity of life.
Holds that human dignity and autonomy of individuals are fundamental
underlying principles of our society, but not necessarily principles of
fundamental justice.
Dissent: Principles of fundamental justice require that each person be
considered individually and be treated fairly under law.
a. What is the objective or state interest of the law or government action?
b. Arbitrariness
i. Is the relationship between the law and the state interest arbitrary? (PHS)
1. Is the law ‘necessary’ to the objective?
2. Is the law ‘inconsistent’ with the state interest?
3. Does the law ‘bear no relation’ to the state interest?
ii. Whether the law is “unrelated to the state’s interest … that it lacks a foundation in
the legal tradition and societal beliefs which are said to be represented by the [law].”
(Rodriguez)
iii. “Arbitrariness asks whether there is a direct connection between the purpose of the
law and the impugned effect on the individual, in the sense that the effect on the
individual bears some relation to the law’s purpose. There must be a rational
connection between the object of the measure that causes s. 7 deprivation, and the
limits it imposes on life, liberty, or security of the person. A law that imposes on
these interests in a way that bears no connection to its objective arbitrarily
impinges on those interests.” (Bedford)
c. Overbreadth
i. Are the restrictions on life, liberty, and security of the person more broadly framed
than necessary to achieve the legislative purpose?
1. i.e. Is there insufficient precision by the legislature in the means used to
accomplish the objective?
d.
Gross disproportionality
i. “Gross disproportionality describes state actions or legislative responses to a problem
that are so extreme as to be disproportionate to any legitimate government interest.”
(PHS)
ii. “Gross disproportionality asks a different question from arbitrariness and overbreadth. It
targets the second fundamental evil: the law’s effect on life, liberty, or security of the
person are so grossly disproportionate to its purposes that they cannot rationally be
supported. The rule against gross disproportionality only applies in extreme cases
where the seriousness of the deprivation is totally out of sync with the objective of
the measure. The idea is captured by the hypothetical of a law with the purpose of
keeping the streets clean that imposes a sentence of life imprisonment for spitting on the
sidewalk. The connection between the draconian impact of the law and its object must be
entirely outside the norms accepted in our free and democratic society.” (Bedford)
 Can a law that violates section 7 and does so in a way that is not in accordance with the principles
of fundamental justice be justified under section 1?
 BC Motor Vehicles Reference
Humphrey 10
o
"Section 1 may, for reasons of administrative expediency, successfully come to the rescue
of an otherwise violation of section 7, but only in cases arising out of exceptional
conditions, such as natural disasters, the outbreak of war, epidemics, and the like."
7. EQUALITY RIGHTS (SECTION 15)
Andrews  Law (discriminatory if violation of human dignity)  Kapp (Andrews)



Equality is traditionally understood as treating all individuals the same, regardless of their
group-based membership(s).
But, sometimes treating everyone equally can lead to adverse effects – therefore, it is necessary
to treat people differently in order to achieve substantive equality.
The SCC has been very willing to accept that equality is more complicated than treating
everyone equally.

But what kind of distinctions are acceptable under s. 15 and what kind violate its principles?
o Need to show not only that they are not receiving equal treatment by the law or that the
law is having a differential impact on them, but that the impact of the law is
discriminatory (Andrews).

Definition of discrimination and use of comparison
o “…discrimination may be described as a distinction, whether intentional or not but
based on grounds relating to personal characteristics of the individual or group, which has
the effect of imposing burdens, obligations, or disadvantages on such individual or
group not imposed upon others, or which withholds or limits access to opportunities,
benefits, and advantages available to other members of society.” (Andrews)
A) Test for Violation of Equality (15(1)) (Kapp)
1. Does the law create a distinction based on enumerated or analogous grounds?
a. Consider whether the law creates a distinction through:
i. Directly differential treatment by treating people differently
ii. Adverse effects (Eldridge, Vriend)
1. A neutral looking rule can have a different effect on members of certain
groups, which can result in adverse effects discrimination.
b. Consider the enumerated grounds:
i. Race, national or ethnic origin, colour, religion, sex, age, mental or physical
disability.
c. If not, consider if it may be an analogous ground:
i. Citizenship (Andrews), sexual orientation (Egan), off-reserve Aboriginal status
(Corbière) and marital status (Miron c. Trudel).
ii. NOTE: Grounds that have not been recognized as analogous:
1. Employment status, province of residence, persons charged with war
crimes or crimes against humanity outside of Canada, persons bringing a
claim against the Crown, marijuana users.
d. If not, consider that it may be a new analogous ground if it is:
Humphrey 11
i. Immutable or constructively immutable personal characteristic (i.e. that it is
beyond the control of the person – Andrews).
ii. An analogous ground is one based on “a personal characteristic that is immutable
or changeable only at unacceptable cost to personal identity.” (Corbière)
 NOTE: Pothier defends against criticisms of grounds as being distanced/desensitized from real
people’s experiences and an artificial compartmentalization which obscure the complexity of real
life.
 Argues that they are important in providing history and context to discrimination and that
they separate people who experience discrimination from those who do not.
 Argues that grounds serve as markers of the dynamics of power – identifying new grounds
makes us examine the new dynamics of power.
 NOTE: Movement away from use of mirror comparator groups (Law-Hodge) as they involve
comparison and treatment of “likes alike” which the courts have moved away from in favour of
substantive over formal equality (Andrews-Kapp).
 Elaborated in Whitler – should stick to grounds, comparator group not necessary.
 Hogg suggests that once the comparator group is established, the outcome of the case is
determined.
 Also, overlooks the fact that the claimant may be impacted by interwoven grounds (Withler).
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotype?
a. The first way that substantive inequality, or discrimination, may be established is by
showing that the impugned law, in purpose or effect, perpetuates prejudice and
disadvantage to members of a group on the basis of personal characteristics within
s. 15(1). Perpetuation of disadvantage typically occurs when the law treats a historically
disadvantaged group in a way that exacerbates the situation of the group.
b. The second way that substantive inequality may be established is by showing that the
disadvantage imposed by the law is based on a stereotype that does not correspond
to the actual circumstances and characteristics of the claimant or claimant group.
Typically, such stereotyping results in perpetuation of prejudice and disadvantage.

To assess if the distinction creates a disadvantage, have to adopt both a purposive and
contextual approach:
o “Whether the s. 15 analysis focuses on perpetuating disadvantage or stereotyping, the
analysis involves looking at the circumstances of members of the group and the
negative impact of the law on them. The analysis is contextual, not formalistic,
grounded in the actual situation of the group and the potential of the impugned law to
worsen their situation.” (Withler)
a. Purpose of impugned law in light of purpose of section 15
i. Substantive, not formal equality (Andrews)
1. Not all differences in treatment  inequality; some identical treatment 
serious inequality
a. Therefore, “treat likes alike” approach not necessarily the best.
b. Contextual factors (Law) – may be helpful, but not necessary to expressly canvass them
all (Withler).
i. Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by
the individual or group in question.
Humphrey 12
ii.
iii.
iv.
The correspondence, or lack thereof, between the ground or grounds on which the
claim is based and the actual need, capacity, or circumstances of the claimant or
others.
The ameliorative purpose or effects of the impugned law upon a more
disadvantaged person or group in society.
The nature ad scope of the interest affected by the impugned law.
B) Test for Affirmative Action Programs (15(2)) (Kapp)





Not every distinction is discriminatory…
There is a difference between affirmative action – which ameliorates the situation of a
historically disadvantaged group at the expense of others (e.g. preferential hiring) – and
substantive equality – which doesn’t harm anyone who is not receiving the beneficial treatment
(e.g. Eldridge).
By their very nature, programs designed to ameliorate the disadvantage of one group will
inevitably exclude individuals from other groups. This does not necessarily make them either
unconstitutional or “reverse discrimination.” (Kapp)
Use 15(2) as an interpretive tool to make sure that we interpret 15(1) in such a way that allows
for differential treatment to address group-based discrimination.
If the government can demonstrate that the distinction and the program seeks to
ameliorate the conditions of a disadvantaged group identified by enumerated or analogous
grounds, then a section 15(1) analysis may not be necessary (Kapp).
1. Claimant must prove that there is a distinction made on an enumerated or analogous ground
(same as step 1 in test for violation of equality).
2. Before moving to the second step in the 15(1) analysis, the government can show that 15(2)
applies:
a. That the law or program has an ameliorative or remedial purpose (must be genuinely
ameliorative).
i. Look at the purpose of the law, not its effects.
ii. The ameliorative purpose does not have to be the only purpose – laws that
restrict or punish behaviour, however, do not qualify under 15(2).
b. That the law or program targets a disadvantaged group identified by the enumerated or
analogous grounds – not every member of the group has to be disadvantaged.
3. If 15(2) applies, the claimant fails; if not, return to 15(1) analysis and proceed with the
substantive equality analysis (step 2).
4. Section 1 could still be raised by the government if the claimant succeeds in proving a violation of
15(1).
8. LANGUAGE RIGHTS (SECTIONS 16-22; 23)
 “Language is more than a mere means of communication, it is part and parcel of the identity and
culture of the people speaking it.” (Mahe)
Ford v. Québec
Humphrey 13



Challenged sections (58 & 59) of Quebec’s language laws that dealt with business signs needing to
be only in French (Bill 101) as a violation of section 2(b) – freedom of expression.
Was successful – court ruled that “language is so intimately related to the form and content of
expression that there cannot be true freedom of expression by means of language if one is
prohibited from using the language of one’s choice. One can’t separate the message from the
medium.”
In its section 1 analysis, the court recognized that while the French language is vulnerable (and
its protection therefore constitutes a pressing and substantial objective) the exclusive use of
French was not necessary – a simple predominance of French would be a more proportionate
measure.
Test for Minority Language Rights (Mahe)

NOTE: Section 23(1)(a) doesn’t apply in Québec – therefore, the only way to get educated in
English in Québec is if your parents were educated in English in Québec or another Canadian
province.
o Doesn’t matter what your first language is (which is the criteria in 23(1)(a)) or what
language you or your parents were educated in if you come from outside of Canada.
1. Sliding scale approach
a. “The idea of a sliding scale is simply that s. 23 guarantees whatever type and level of
rights and services is appropriate in order to provide minority language instruction
for the particular number of students involved.”
a. Depending on numbers, s.23 would justify separate classes, schools, representation on a
school board, or a whole separate school board.
b. Section 23(a) is the lower threshold for instruction in a language of linguistic minority.
c. Section 23(b) is the upper threshold for management and control of facilities (e.g. schools,
school board) in a language of linguistic minority.

In this case, it was determined that numbers did not warrant a separate school board, but
designated spots for French parents on the English school board
9. LIMITATIONS ON CHARTER RIGHTS (SECTION 1)

Even if your right has been infringed, government can argue that a limitation on that right is
justified under s.1.

Section 1 limitations must be either prescribed by law or a reasonable limitation that is
demonstrably justified in a free and democratic society.
A) Prescribed by law (Nova Scotia Pharmaceutical Society)
1. Authorised by law
2. Public – published, available, citizens given notice
3. Formulated with sufficient precision, not vague. Need to know what the law expects of us.
OR
Humphrey 14
B) Reasonable limits (Oakes test)



Main commitment is to upholding rights and freedoms – limitations are the exception.
Should be guided by principles of free and democratic society.
Ought to use a purposive and contextual analysis (Edmonton Journal).

Burden of proof to impose limitation is on the state.
1. Is the objective of the statute of sufficient importance to warrant overriding a Charter right?
a. Needs to be pressing and substantial.
2. Are the means chosen reasonable and demonstrably justified?
a. Law has to be rationally connected to the objective of the law.
i. Greater willingness to defer to the legislature (Irwin Toy).
b. Law should impair rights as little as possible.
c. Must be proportionality between the effects of the law and the objective of the law.
i. The more serious the deleterious effects of a law, the more important the
objective has to be.
d. Final balancing of deleterious effects vs. salutary effects
i. The more severe the deleterious effects of a measure are, the more
important the objective of the government must be and the greater the
salutary (secondary positive) effects must be.
Limitations on Charter Rights (post-Oakes test)

Expansion of the Oakes test:
o Emergence of contextual approach to assessment of limits (Edmonton Journal).
o Court’s willingness to defer to the legislature’s judgement about the need for a limit
(Irwin Toy).
Edmonton Journal v. Alberta (AG)
 First court reference to not only a purposive but a contextual approach.
 Case was about freedom of expression and freedom of press.
o In the abstract, we would say that these are fundamentally important.
o In this particular context, they appear to be less vital.
 Determination that a particular right/freedom may have a different value depending on the
context.
o Approach is argued to be more sensitive to reality of the dilemma and more conducive
to finding a fair and just compromise.
Irwin Toy v. Québec (AG)
 Legislation to protect children from advertising.
 In some cases we don’t want it to be too difficult for the government to place some restrictions
on rights.
 Deference is justified when the government is:
o Balancing competing rights
o Protecting socially vulnerable group
Humphrey 15
Balancing interest of social groups competing for scarce resources
Addressing conflicting social scientific evidence
 Court not better suited to evaluate social scientific evidence
Why is deference justified?
o Because the Charter shouldn’t be used as a tool to role back legislative measures that
protect socially vulnerable people.
o Concerns re: supremacy of courts – inappropriate for them to second guess legislative
decisions on social policy.
We should distinguish between cases where the government is balancing competing interests
(maybe should defer) vs. where the government is the singular antagonist of the individual
whose right is being infringed (maybe should not defer).
o
o



3 ways to defer to government (Moon)
o Judicial deference re: findings of fact.
o When legislature is balancing between competing interests.
 Courts reluctant to substitute their judgement for that of the legislature.
o Lowering the standard of justification under s.1.
Section 33 – Notwithstanding Clause



Ford




Used to override rights in sections 2, 7, and 15.
Only applies for five years or less, must be specified by declaration.
Was included as a political compromise to garner provincial support.
Québec introduced omnibus legislation and used notwithstanding clause – challenged on basis of
it looking like an attempt to opt out of the whole Charter at once.
Court allowed it, arguing that legislation met the requirement that is expressly declare which
sections of the Charter it was overriding.
But, ruled that the notwithstanding clause couldn’t apply retroactively.
How does the notwithstanding clause impact questions re: legitimacy of judicial review?
o Means judges don’t have to worry about overriding democratic decisions (Weinrib).
 Counters argument that judges have too much power.
 But, it’s hardly ever used.
o Allows tyranny of majority to exist with no check on it.