Final Exam

Question 1

To invalidate the standard under freedom of religion…

Answer 1

1. If the person individual seek to invalidate the norm that is the end of the process of article 2(a)
   - Ask person to prove violation and then the state tries to justify under sec 1
   - Must simply demonstrate that this norm harms by its purpose of effect in a manner more than nonsubstantive
   - Reversal of burden if the state proves the limitation is okay
2. Asking for exemption or avoiding application of the norm
   - If an individual does not seek to invalidate the norm and only seeks exemption they will have to demonstrate that it is question of sincerity of the belief
   - The individual does not need to demonstrate that it is a mandatory practice and only that it is only need a exemption

Question 2

2 important principles of reasonable accommodations under freedom of religion are

Answer 2

1. Reasonable accommodation is granted by the charter does not always mean equal treatment
   - We give different treatment to each situation so everyone can be equal
   - Differential treatment is sometimes essential to promote equal treatment between people
2. Reasonable accommodations are made on the basis of individual rights and do not constitute collective rights granted to religious groups

Question 3

What is substantial and Tribal interference?

Answer 3

• Interference which does not threaten actual religious belief or convent
• Ex: oath to the queen of becoming a canadian citizen
• This oath is secular does not constitute a more than tribal or substantive limitation on a religious belief

Question 4

What is principle of neutrality?

Answer 4

• Imposes the obligation to cease traditional or heritage practices of a religious nature that constitute a form of identification of the State with a particular religion
• Also applies to government workers

Question 5

Section 7 in the Canadian Charter

Answer 5

• Provides protection for these rights in that they only be deprived in accordance with the fundamental justice (ex: sec 1)
• This article is protect to individuals in the context of the legal system and most of the time in criminal cases
• applies to everyone even non-citizens
• No clear application because the court has a broad justification on this determine what is right to person

Question 6

Article 7 Scope

Answer 6

• When charter right has been illegally been violated the court will comes to 3 possible conclusions
  
  1. Determine whether a right to life, liberty or security of the person is infringed;
  2. Determine whether the government’s action accords with the principles of fundamental justice;
     - If there is a violation → reversal of burden where the legal analysis will proceed to section 1 and government must prove limitation is justified
     - The violation is justified → the government’s action is proved as legitimate
  3. The violation is not justified → the government’s action is unconstitutional

Question 7

3 stages to determine whether sec 7 is infringed

Answer 7

1. Real or immediate deprivation of three rights
2. Identify or find the relevant principles of fundamental justice
3. See if the deprivation has acquired in accordance to the fundamentals of justice

Question 8

Protection of immigrants and or refugees under sec 7

Answer 8

• The immigration and refugee act allows the appropriate ministers to issue a certificate of inaccessibility leading to the detention of a permanent resident who is considered a threat to national security; the appropriate minister can decide to issue a certificate of inaccessibility.
• The violation can be justified by international or domestic text
• If the person is sent back to the country where they are not safe without a certificate it could be a violation by the government

Question 9

Is it right that the three rights are not an absolute rights?

Answer 9

Yes it is not an absolute right because it can be violated but it is need to be justified that it is not accordance to the fundamental of justice or under sec 1

Question 10

Substantive fundamental Justice

Answer 10

• The principles of fundamental justice encompass three categories
  1. Arbitrariness (The independence and impartiality of the
  judiciary)
  2. Overbreadth (The presumption of innocence in non-criminal proceedings)
  3. gross disproportionality (where the punishment by law is extremely excessive)

Question 11

Procedural fundamental justice

Answer 11

• Applied by sections 8-14
• refers to principles and standards that ensure fairness, equity, in legal proceedings

Question 12

Why is sec 15 important?

Answer 12

• This was provided in the law against canada case of 1999
• The court provided that equality rights are very important because every person is entitled to dignity and worth as a human being equal treatment respect and consideration,
• discrimination has the effect of perpetuating or promoting the view that the individual is less capable or less worthy or valued in society
• Can affect a person’s mental health
• The purpose of sec 15 is to eliminate barriers faced by certain individuals allowing them to gain access to what is generally available to other persons
• Equality rights ensures that each person is entitled to equality, human dignity and to reach our full potential and live our lives freely

Question 13

Substantive equality

Answer 13

• The supreme court of Canada has consistently interpreted this right as protecting substantive equality
• Substantive equality Means that the Laws and governments actions must not simply treat people the same but instead the effect that law has on different groups must be considered

Question 14

Formal Equality

Answer 14

• We adopted formal equality but overtime see it is difficult to prove violation
• Under formal equality laws are applied in a similar manner to all those who are similarly situated
• Treating people in similar situations the same regardless of other factors
• Ex: a short person and a tall person given same treatment even though one might need accommodation for equality

Question 15

Important differences between the two sections (sec 15 and sec 10)

Answer 15

1. Need gov actions for canadian charter
   Don’t need gov actions for quebec charter
2. Sec 15 is subject to sec 1 but sec 10 of the quebec charter has internal limiting factor because it applies only in quebec
3. Most important difference is that article 15 list is of grounds is not exhaustive so we can bring similar grounds but for quebec we must rely on of the enumerated grounds

Question 16

​​According to the supreme court the criteria for a ground to be similar or analogous are

Answer 16

1. Must be a traditionally vulnerable group (group object of discrimination)
2. Immutable characteristics of the group (does not mean that it can never change but generally a difficult status to modify)

Question 17

In Law case the supreme court develops 4 conceptual factors

Answer 17

1. pre-existing disadvantage, if any, of the claimant group;
2. degree of correspondence between the difference in treatment and the reality of the requesting group;
3. the law or program has an ameliorative purpose or effect; and
4. the nature of the interest affected.

Question 18

Relationship between sec 15. And sec 1

Answer 18

• Sec 15 must show distinction between a group but sec 1 justifies the violation
• Once we have a violation which is discriminatory we must justify this law by the oakes test
• Relationship is difficult to establish in a perfect way because in sec 15 it is up to the plaintiff to show there is a violation but in sec 1 it is up to the government to justify the action
• We talk about 15 (2) but not 15 (1)

Question 19

sec 24 (1)

Answer 19

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances

Question 20

sec 52

Answer 20

The Constitution of Canada is the supreme law of Canada; it renders inoperative the incompatible provisions of any other rule of law.

Question 21

Burden of the applicant (sec 24 and 52)

Answer 21

1. Establish an adequate factual foundation
   Specific section in the charter which is infringed or the basis of the claim
2. Bring his or her claim to the competent court or tribunal because it is provided by sec 24 (applies to court of competent jurisdiction)
3. Provide evidence to persuade court to show his or her rights have been infringed or rights and freedoms can be violated in the future

Question 22

What is Section 7 of the Canadian Charter?

Answer 22

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.

Question 23

What is Section 2 (a) of the Canadian Charter?

Answer 23

Protects your freedom to hold and practice your religious beliefs.

Question 24

What is Section 15 (1) and (2) of the Canadian Charter?

Answer 24

1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
2) ) Section (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.

Question 25

What is sec 24 of the Canadian Charter?

Answer 25

• The Charter contains three provisions that govern the granting of remedies where there is a
  finding of unconstitutionality.
• Section 24(1) provides remedies against unconstitutional government action;
• section 24(2) provides for the exclusion of evidence obtained in violation of the Charter; and
• section 52(1) of the Constitution Act, 1982 provides that a law that is inconsistent with the Constitution is,
  to the extent of the inconsistency, of no force or effect.

Question 26

What is section 10 of the Quebec Charter?

Answer 26

• Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, sexual orientation, civil status, religion, political convictions, language, ethnic or national origin or social condition.
• Equivalent to sec 15 of the Canadian charter which some differences