Charter of Rights and Freedoms Flashcards
Aids to the interpretation of the Charter
1) Interpretive Provisions in the Charter:
several provisions that do not entrench a particular right, but instead affirm or highlight certain values that are to be taken into account when interpreting the entrenched rights and assessing the justification of limits under Section 1.
2) Parliamentary and Committee Debates:
a few cases considered parliamentary debates that preceded the enactment of the Charter.
3) Canadian Pre-Charter Jurisprudence:
an early Charter judgements, the Supreme Court signalled that decisions under the Canadian Bill of Rights had only limited relevance in Charter cases, given the different constitutional status and structure of the Charter.
4) Comparative and International Sources:
Canadian courts look to judgements in other jurisdictions interpreting other rights documents when interpreting our Charter.
Interpretation of Charter Rights
1) Progressive interpretation:
the living tree doctrine (Edwards v Canada)
2) Generous Interpretation: large and liberal interpretation
3) Purposive interpretation
The purposive interpretation tends to focus on what the purpose of the charter right is.
Retail, Wholesale and Department Store Union v Dolphin Delivery [1986]
Tells us that it doesn’t apply to “purely private activities”
The Dolphin Delivery case says “the rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The charter regulates the relations between government and private persons, but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the application of the charter”. (Justice McIntyre quoting Peter Hogg)
Greater Vancouver
(Control Test)
1) By inquiring into the nature of the entity or by inquiring into the nature of its activities.”
So, on the one hand, if by its nature – if by its features – it is governmental… For example, if you have a public school – by its nature you are dealing with the government there, because this is something that is provided by the government of a province, so this is subject to the charter. That automatically means that the Charter would apply if there is a violation of one of your Charter rights.
However, “if the entity is found to be government, either because of its nature or because the government exercises substantial control over it, all its activities will be subject to the Charter.”
2) “If an entity is not itself a governmental entity, but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the charter.”
So, it can be an entity that is not governmental, but by the nature of the activity it does it becomes governmental
Eldrige case
(Government Activity Test)
“An entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly governmental in nature, for example, the limitation of a specific statutory scheme or a government program, the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.”
Vriend v Alberta [1998]
the Vriend case is a discussion about the omission of sexual orientation from the list of prohibited grounds in Alberta’s human rights legislation.
The court said that that constituted an unjustifiable violation of Section 15 (equality rights) of the Charter.
So the fact that the discrimination on sexual orientation… The omission of that particular ground of discrimination within the legislation of Alberta… The fact that it was not mentioned… Constituted a violation of a Charter right.
So the Vriend case informs you that an omission can be subject to Charter review.
Charter analysis a two-stage process:
1) The claimant must demonstrate that the impugned law or government action limits or violates a right protected by the charter.
There is no judicial review under the charter if there is no violation.
2) The government must demonstrate that the limitation or violation can be justified under Section 1.
The burden is on the government, and all of this assessed to the balance of probabilities. That’s the threshold that is applied. That is the standard.
Oakes Test:
(Justice Dickson)
1) Pressing and substantial objective:
That means that the objective of the law must be of sufficient importance to justify overwriting a
Charter right. Only an objective that is “pressing and substantial in a free and democratic society” qualifies as being of sufficient importance.
If there is a real pressing need to have this legislation, it is okay to violate a charter right.
2) Rational connection:
The measures adopted must be “carefully designed” or “rationally connected” to the pressing and substantial objective.
There must be a clear link between the important objective and the fact that we are violating the charter right. There must be a clear reason; a logical connection between the two.
3) Minimal impairment:
This is the most important ground. This is usually where all of the analysis of Section 1 is focused.
The law must impair the right as little as possible. This step involves a comparison of the impugned measure with other available alternatives, in order to assess whether the government could have achieved its objectives with a less significant impact on rights and freedoms.
4) Proportionality:
There must be proportionality between the “salutary” and “deleterious” efforts of the law. This step involves the consideration of whether the benefits achieved from the law outweigh its negative impact on rights.
Irwin Toy v Québec (Attorney General)
A corporation that was bringing a charter challenge against a Québec law. The Québec law was actually prohibiting commercial advertising directly at children under the age of 13.
It comes with regards to freedom of expression. It comes with regards to a Section 1 analysis.
The court found that the restriction in the provision of the law was sufficiently clear here to satisfy the specific law standard of the Dickson four-part test.
It then went on to uphold the law as justified restriction of the freedom of expression.
Wilson Colony of Hutterian Brethren
In 1974, in the province of Alberta you have a statute that says you need to have a photograph for your driver’s license. Everyone that is issued a license needs a photograph.
In that particular time in 1974 there is a discretionary exemption for religious objectors — their religion prohibits them from being photographed.
In 2003 the province introduced the universal photo requirement, and because they needed pictures taken for the facial recognition database that they had.
It established this database to reduce the risk of identity theft in the province.
So, there was no option for the religious objector to opt out after taking a photograph.
The court unanimously held that there was indeed a violation of freedom of religion under Section 2(a) of the Charter. So, they all agreed on that.
However, the majority of the court upheld the exemption under Section 1.
Chief Justice Beverly McLachlan said that….She focused all of her analysis on the minimal impairment test. She says that both prongs of the test – both the proportionality test any substantial impairment – are essential, and they are not redundant.
The bottom line is that Chief Justice McLaughlin says that it is not redundant. She says only the less traumatic means which do not actually achieve the government’s objectives are not considered at the stage.
the alternatives most probably won’t achieve the exact objective that this particular act is trying to achieve. Therefore, we need to be careful when we assess the minimal impairment.
It can be less impairing. However, it might not exactly achieve the objective. And if they are less impairing and not exactly achieving the objective… I then need to go into the proportion test.
Ford v Québec (Attorney General) [1988]
The “Override” or the “notwithstanding Clause” section 33
