Charter of Rights and Freedoms

Question 1

Civil rights

Human rights

Answer 1

Protection of individual rights and freedoms

Interrelated, interdependent and indivisible rights and obligations
Inherent and universal

Question 2

What the Charter includes (7)

Answer 2

Fundamental freedoms
Democratic rights
Mobility rights
Legal rights
Equality rights
Official languages of Canada
Minority language educational rights

Question 3

Section 1 ‘Reasonable limit’

Answer 3

Makes clear that Charter’s rights and freedoms are guaranteed but only to reasonable extent of the law in a democratic society (ie not guaranteed absolutely)

Question 4

Section 33 ‘Notwithstanding’

Answer 4

Provides Parliament or provinces to legislate regardless of certain Charter rights for a 5 year period (has rarely been used)

Question 5

Originalism

Answer 5

Approach to understanding vagueness of Charter rights, is by giving them the meaning that those who drafted the Charter intended them to have
Reduces interpretive discretion of judges
Criticized because it is impossible to know the intentions of the original writers, and also it would be assuming that all of them had a single intention
Some people also say that the intentions of long dead ancestors shouldn’t govern modern society

Question 6

Living constitutionalism

Answer 6

Meaning of Charter rights may grow and expand over time ‘within natural limits’
More broad approach than originalism
Requires construction as well as interpretation –> interpretation is concerned with determining the meaning of terms but construction is concerned with giving effect to terms

Question 7

Purposive interpretation

Answer 7

SSC often defines rights having regard to the purpose it supposes the rights are required to serve
Once a purpose is ascribed to a right, the scope for interpreting that right shrinks dramatically
Is a controversial approach because Charter rights rarely have a single approach

Question 8

Influences on constitutional interpretation

Answer 8

Decisions of courts in other countries interpreting similar constitutional rights protections may be influential in Canadian courts (e.g. in early days of Charter American SC decisions were often cited)
Interpretation may also be influenced by international human rights treaties, some of which predate the Charter

Question 9

R. v. Oakes

Answer 9

Narcotic Control Act
in Oakes, the limit was not justified because there was no rational connection between possession of a small quantity of narcotics and an intent to traffic drugs (failed the test)

Question 10

Irwin Toy v. Quebec

Answer 10

Irwin Toy challenged the Consumer Protection Act which prohibited TV advertising targeted to children below 13, arguing that it was a breach of freedom of expression
Court went on to hold that the limitation on the right was justified as a reasonable limit
Passed the Oakes test

Question 11

Oakes test

Answer 11

Is the limit established in pursuit of an objective that is pressing and substantial?
If so, is the limit rationally connected to the objective?
Is so, does the limit impair the right as little as possible in the circumstances?
Finally, is the loss of the right proportional having regard to the gain in terms of the objective being pursued?
Failing any of these questions = failing the Oakes test = infringement on the Charter is not within reasonable limits, is therefore unconstitutional

Question 12

Notwithstanding clause

Answer 12

Was key to the agreement of the provinces to adopt the Charter
Basically, it prevents courts from invalidating legislation on the basis that it breaches the Charter → allows legislature to enact laws that are otherwise unconstitutional
Notwithstanding clause applies to fundamental freedoms (section 2) and equality rights (section 7-15)
Only applies prospectively
Notwithstanding clause may be invoked before legislation is challenged in court, which would ‘immunize’ the legislation against a declaration of unconstitutionality (prospective approach)
Can also be invoked following a judicial decision that finds a legislation to be unconstitutional (reactive approach)

Question 13

How a Charter case arises
Who is involved (3)
When a Charter case can be brought to court

Answer 13

Charter violation may be litigated because of ordinary law enforcement (e.g. person prosecuted for violating a law may argue that the prosecution cannot succeed because the law in question is unconstitutional) or because an individual/group is simply arguing that a law infringes on the Charter (even if it isn’t being enforced)
Legislation is presumed to be constitutional so plaintiff must first prove that their right has been infringed, then it is up to government to prove that the infringement is justified

Party
Intervener
The state

There is a serious question of constitutionality at stake
The plaintiff has standing (is directly affected) or has a genuine interest in the law
There is no other reasonable means of bringing the given issue before the court

Question 14

Remedying the charter (2 main methods)

Answer 14

Invalidation - striking down, will sometimes be delayed to allow legislature to address the problem

Interpretation - read down if legislation is overbroad, read in if legislation is underinclusive

Question 15

Section 24 (1) - standard remedies (3)
Section 24(2)

Answer 15

(1) allows court to award whatever remedy it considers ‘just and appropriate’ (enormous discretion)
Declarations
Injunctions
Damages (only appropriate if other remedies are impossible)

(2) is relevant in criminal law prosecutions because it allows the court to exclude evidence from being used against a charged person on trial where that person’s rights were violated in context of the investigation

Question 16

Schachter v. Canada

Answer 16

Schachter was the father of a newborn baby and applied for benefits to stay home with his baby while his wife worked, but was denied because the act only provided benefits for mothers → Schachter argued that law infringed on his equality rights (underinclusive, didn’t include men) and the government conceded that it did

Question 17

Dealing with Section 52 (unconstitionality) - 3 questions

Answer 17

What is the extent of the inconsistency? - where does the law fail the Oakes test
Can the inconsistency be dealt with alone? - Only appropriate when objective of law is obvious, won’t require a large budget, and is a reasonable intrusion on legislative domain
Should the legislation be declared temporarily invalid instead of being struck down? - Only appropriate when striking down would be dangerous to the public or it would threaten the rule of law

Question 18

Whatcott v. Saskatchewan Human Rights Commission

Answer 18

Whatcott was charged with violating the Saskatchewan Human Rights Code after distributing flyers against homosexuality citing Bible verses
Whatcott argued that the law infringed on his freedom of expression and religion
SSC upheld the constitutionality of the law unanimously → limitation of Charter is justified by commitment to equality and respect for group identity and limitation is proportionate to its objective

Question 19

Section 15 (1) and (2)

Answer 19

(1): Equality before and under law and equal protection and benefit of law
Purpose is to prevent government from discriminating based on personal characteristics

2): Affirmative action programs
Purpose is to allow government to proactively combat discrimination (amelioration)

Question 20

R. v. Kapp

Answer 20

British Columbia law established a period in which only Aboriginals could fish for salmon in Fraser River, group of non Aboriginal fishermen fished during this period in protest and were charged for violating the law and they argued that the law was unconstitutional → court needed to interpret the affirmative action programs stated in the Charter
Court held that a program does not violate Section 15(1) if
A program has ameliorative/remedial purpose
The program targets a disadvantaged group
Therefore, the BC law was upheld as constitutional

Question 21

Withler v. Canada

Answer 21

Federal law provides lump sum death benefit to families of civil servants/armed forces that is reduced according to age → claimants argued that reduction in benefit was discrimination
Test for descrimination
Does the law create a distinction based on enumerated or analogous grounds (personal characteristics that are permanent or only changeable at a cost to personal identity)?
Common law has made this definition include sexual orientation, citizenship, marital status, etc.
Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
Court held that reduction in benefits did not violate the first part of the test, therefore didn’t assess the second part