Interpreting the Charter

Question 1

The Charter applies to

Answer 1

government action, NOT private action

Question 2

The Charter does not apply to matters of parliamentary______

Answer 2

privelege, which are limited powers required to ensure that legislatures may discharge their functions (Chagnon v Syndicat de la fonction publique et parapublique du Quebec)

Question 3

Section 7 guarantees the rights of

Answer 3

Life, liberty and security of person to all individuals physically present in Canada, despite citizenship or status

Question 4

Section 2 of the charter protects the rights of:

Answer 4

• freedom of conscience and religion
• freedom of thought, belief, opinion and expression, incl freedom of press and other media communication
• freedom of peaceful assembly
• freedom of association

Question 5

Section 3 of the Charter protects

Answer 5

the right to vote and stand for election for the House of Commons or a provincial legislature, but NOT to contest municipal or school board elections

Question 6

Sections 4-5 of the Charter set out the

Answer 6

minimums and frequency for elections, sitting of Parliament and provincial legislatures.

Question 7

Section 6 of the Charter protects

Answer 7

mobility rights of citizens of Canada, but affords no protection to permanent residents facing deportation.

Question 8

A person seeking to prove a breach of due process must:

Answer 8

identify a violation of the principle of fundamental justice in accordance with three criteria:
- it must be a legal principle
- there must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate
- it must yield a manageable standard against which to measure the deprivations of life, liberty or security of the person

established in R v Malmo-Levine para 113

R v DB para 46

Question 9

India v Badesha, the SCC held that

Answer 9

it would violate the principles of fundamental justice to extradite a person to a requesting country if the person would face a substantial risk of turture or mistreatment in that country.

Question 10

Section 8 of the Charter provides that

Answer 10

everyone has the right to be secure against unreasonable search and seizure

Question 11

Section 9 of the Charter provides that

Answer 11

everyone has the right not to be arbitrarily detained or imprisoned

Question 12

Section 10 of the Charter provides for rights on…

Answer 12

arrest or detention, including
- the right to be informed of the reason,
- the right to counsel (which does not include paralegal), and
- the right to challenge the validity of detention through habeas corpus

Question 13

Section 12 prohibits

Answer 13

cruel and unusual punishment

Question 14

Section 15 of the Charter guarantees

Answer 14

each individual as equal before and under the law and having the right to the equal protection and equal benefit of the law without discrimination, particularly on the basis of:
- race
- national or ethnic origin
- colour
- religion
- sex
- age or mental or physical disability

Question 15

The SCC has interpreted s15 to mean that discrimination based on both the enumerated and____

Answer 15

analagous grounds is prohibited.

Question 16

What is the test set out in R v Sharma, relating to a finding of discrimination under s15(1)?

Answer 16

• the impugned law or state action create a distinction based on enumerated or analogous grounds, on its face or in impact?
• does it impose a burden or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage?

Question 17

A distinction imposes arbitrary or discriminatory disadvantage where it fails to

Answer 17

respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage

Question 18

Section 15(2) of the Charter preserves the governement’s ability to

Answer 18

engage in affirmative action programs to ameliorate the disadvantage of groups characterized by a protected ground

Question 19

Language rights are protected in sections

Answer 19

16-23 of the Charter

Question 20

internal limits are

Answer 20

language within the Charter that express circumstances where rights may be limited

Question 21

interpretive limits upon rights occur when

Answer 21

courts interpret limits on the rights

Question 22

After a limit or infringement of a Charter right is found, that limit may be excused if it

Answer 22

meets the criteria of Section 1, which states that rights set out in the Charter are guaranteed only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

Question 23

The Oakes Test requires that:

Answer 23

• the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right
• the means chosen to obtain these objectives must be proportional or appropriate to the ends. The proportionality aspect requires that:

1. the limiting measures are rationally connected to the objective
2. they must impair the right as little as possible
3. the effects must not so severely trench on individual or group rights that the legislative objective is outweighed by the abridgement of rights.

Question 24

Section 33 of the Charter is

Answer 24

the notwithstanding clause, allowing override power of sections 2, 7-15 of the Charter

Question 25

Remedies for a Charter breach are found under

Answer 25

section 52 of the Constitution Act- changes to law/ of no force and effect

Section 24 of the Charter- individual remedies

Question 26

Define striking down

Answer 26

the consequene of a law being found to be of no force or effect under section 52 of the COnstitution Act 1982

Question 27

Define reading down

Answer 27

the removal or ignoring of words found to offend the Charter

Question 28

define reading in

Answer 28

words are read in by the court to overcome an omission in law

Question 29

what remedy was used in Vriend v Alberta?

Answer 29

Sexual orientation was read in to the Individual’s Rights Protection Act

Question 30

using the Charter as an interpretive tool means

Answer 30

when one reading of a statute would result in a Charter infringement but another equally plausible reading would avoid infringement, the interpretation consistent with the Charter is preferred

Question 31

Severence is

Answer 31

a remedy involving the removal of the offending part of the statute, used where the court determined that it is not appropriate for any reason to read in or read down the statute.

Question 32

Suspending a declaration of invalidity occurs when

Answer 32

a court determines that some/all of a legislative provision is invalid, and suspends its order for a period of time to permit the legislature to remedy the infringement

Question 33

an application for relief under section 24(1) can only be made by

Answer 33

a person who’s right has been infringed, although there may be scope for a representative claim where the Charter breach results in the death of the claimant

Question 34

The remedy of a declaration of breach is used

Answer 34

when under s 24(1), a constitutional litigant’s infringement of CHarter rights occur not by virtue of an impugned law but by virtue of unconstitutional government action carried out within the context of valid laws

Question 35

The three types of injunctions available under section 24(1) of the Charter are:

Answer 35

• preventative (prohibits action)
• mandatory (requires positive steps be taken)
• structural (combo of mandatory with direct/indirect judicial supervision

Question 36

Damages may be awarded in Charter cases where

Answer 36

the purposes for damages are met, namely:
- compensation
- vindication of rights
- deterrence

Question 37

Damages are not available for

Answer 37

state action arising from the operation of a law that is subsequently found to be unconstitutional, unless the conduct was “clearly wrong, in bad faith or an abuse of power”

Question 38

Subsection 24(2) provides for

Answer 38

the exclusion of evidence in criminal cases where its admission would bring the administration of justice into disrepute

Question 39

R v Grant, the SCC identified three inquiries to be conducted by the court if Section 24(2) is raised:

Answer 39

• the seriousness of the Charter infringing state conduct
• the impact of the breach on the Charter protected interest of the accused
• society’s interest in the adjudication of the case on its merits.