1 CONSTITUTIONAL LAW: CHARTER Charter 5

Pre-Charter 5 Implied Bill of Rights 5 Switzman v Elbling 5 Dupond v City of Montreal 6 Ontario v OPSEU 6 Bill of Rights 6 R v Drybones 6 AG (Canada) v Lavell 6 Bliss v AG (Canada) 7 Charter Development 7 Trudeau, “A Canadian Charter of Human Rights” 7 Cairns, “Charter versus Federalism” 7 Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms” 7 Weinrib, “Of Diligence and Dice,” “Paradigm Lost?” 7 Leclair, “Constitutional Principles in the Secession Reference” 8 Gold, “The Mask of Objectivity” 8 Bogart, “Courts and Country” 8 Petter, “Immaculate Deception” 8 Hogg and Bushell, “The Charter Dialogue” 8 Roach, “The Supreme Court on Trial” 9

Application 9 Private Action 9 RWDSU v Dolphin Delivery 9 Governmental Actors 9 McKinney v University of Guelph 10 Stoffman v Vancouver General Hospital 10 Douglas/Kwantlen Faculty Association v Douglas College 10 Vancouver Transportation v Canadian Federation of Students 10 Governmental Acts (by Non-Governmental Actors) 11 Eldridge v British Columbia (AG) 11 Slaight Communications Inc v Davidson 11 Blencoe v British Columbia (Human Rights Commission) 11 R v Buhay 11 Governmental Inaction 12 Vriend v Alberta 12 Dunmore v Ontario (AG) 12 Intersections with the Courts and Common Law 12 BCGEU v British Columbia (AG) 12 Hill v Church of Scientology of Toronto 12

2 R v Salituro 13 RWDSU v Pepsi-Cola Canada Beverages 13 Grant v Torstar Corp 13 Doré v Barreau du Québec 13 Territorial Limits 13 R v Cook 13 R v Hape 14 Canada (Justice) v Khadr 14 Amnesty International v Canada 14 Standing 14 Canada v Downtown Eastside Sex Workers United Against Violence Society 14

Limitation 15 Section 1: “Prescribed by Law” and “Demonstrably Justified” 15 R v Therens 15 Osborne v Canada (Treasury Board) 15 Greater Vancouver Transportation Authority 15 R v Oakes 16 Big M 16 Dagenais v Canadian Broadcasting Corp 17 Edmonton Journal v Alberta (AG) 17 Irwin Toy 17 R v Lucas 17 Choudhry, “So What is the Real Legacy of Oakes?” 17 Section 33: “Notwithstanding” 18 Ford v Quebec (AG) 18 Weinrib, “The Notwithstanding Clause” 18 Hiebert, “The Notwithstanding Clause” 18

Remedies 18 Roach, Constitutional Remedies in Canada 19 Section 52 19 Schachter v Canada 19 Vriend v Alberta 20 M v H 20 R v Sharpe 20 R v Ferguson 20 Re Manitoba Language Rights 21 Carter v Canada (AG) 21 Section 24(1) 21 Little Sisters Book and Art Emporium v Canada 21 Canada (Prime Minister) v Khadr 21 Canada (AG) v PHS Community Services 21

3 Doucet-Boudreau v Nova Scotia (Minister of Education) 21 Thibodeau v Air Canada 22 Vancouver (City) v Ward 22 Mackin v New Brunswick (Minister of Finance) 23

2(b): Freedom of Expression 23 Purpose 23 Roach and Schneiderman, “Freedom of Expression in Canada” 23 R v Keegstra 23 Moon, “The Constitutional Protection of Freedom of Expression” 23 Commercial Expression 23 Irwin Toy Ltd v Quebec (AG) 23 Ford v Quebec (AG) 24 Rocket v Royal College of Dental Surgeons 24 RJR MacDonald Inc v Canada (AG) 24 Canada (AG) v JTI MacDonald Corp 25 Ramsden v Peterborough (City) 25 R v Guignard 25 Hate Speech 25 R v Keegstra 26 R v Zundel 27 Canada (Human Rights Commission) v Taylor 27 Moon, “Report to the Canadian Human Rights Commission Concerning Section 13” 27 Ross v New Brunswick School District 27 Saskatchewan (Human Rights Commission) v Whatcott 27

2(a): Freedom of Conscience and Religion 28 R v Big M Drug Mart 28 Syndicat Northcrest v Amselem 28 Bouchard and Taylor, “Building the Future: A Time for Reconciliation” 29 Multani v Commission scolaire Marguerite-Bourgeoys 29 Alberta v Hutterian Brethren of Wilson Colony 29 R v NS 30 Conflicts of Rights 30

15: Equality Rights 31 The Test 31 Andrews v Law Society of British Columbia 31 Lavoie v Canada 31 R v Turpin 32 1995 Trilogy 32 Law v Canada (Minister of Employment and Immigration) 32 Gosselin v Quebec (AG) 33

4 Canadian Foundation for Children, Youth, and the Law v Canada 33 R v Kapp 33 Quebec (AG) v A 33 Kahkewistahaw First Nation v Taypotat 34 Adverse Effects 34 Eldridge v BC (AG) 34 Vriend v Alberta 35 Enumerated and Analogous Grounds 35 Pothier, “Connecting Grounds of Discrimination to Real People’s Real Experiences” 35 Corbiere v Canada (Minister of Indian and Northern Affairs) 35 15(2) Ameliorative Laws or Programs 36 R v Kapp 36 Lovelace v Ontario 36

7: Life, Liberty, and Security of the Person 37 BC Motor Vehicle Reference 37 Interests Protected 37 B(R) v Children’s Aid Society of Metropolitan Toronto 37 New Brunswick (Minister of Health and Community Services) v G(J) 38 Blencoe v BC (Human Rights Commission) 38 R v Morgentaler 38 Principles of Fundamental Justice 39 Malmo-Levine 39 Canada (AG) v PHS Community Services Society 39 Carter v Canada (AG) 39 Gosselin v Quebec (AG) 41 Chaoulli v Quebec (AG) 41 Further Section 7 Developments 42

5 Charter 1. The C​ anadian Charter of Rights and Freedoms ​ guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: a. Freedom of conscience and religion; b. Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication; c. Freedom of peaceful assembly; and d. Freedom of association 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. 15. 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) Subsection (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. 24(1). 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. 27. Charter shall be interpreted in a manner consistent with the preservation of the multicultural heritage of Canadians. 32. This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. 33. Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. 52. The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Pre-Charter Implied Bill of Rights Switzman v Elbling ● Challenged ​Padlock Act​ to control communism (illegal to use house to propagate communism) → action for eviction → challenged act as being u​ ltra vires ● Rand: rejects conception of federalism giving absolute power to either legislature, which Quebec argued because the ​Act works on property (92(13)) and is a local and private matter (92(16)) ○ Property purpose is subsidiary to another head of power → pith and substance analysis ○ Cannot use property head of power to indirectly work u​ ltra vires ○ But ban is directed against freedom/civil liberties so“there is nothing of civil rights in this” ○ Preamble of constitution ‘similar in principle to that of the United Kingdom” means “government by the free public opinion of an open society” → requires “a virtually unobstructed access to and diffusion of ideas” ■ Freedom of discussion (subject-matter of ​Act)​ is inherently not local/private ■ Any prohibition would have to be part of criminal law (e.g. sedition laws) ● Abbott (concurring): free expression on public policy and right to discuss/debate is essential to parliamentary democracy and provincial right to restrict it must be purely private (e.g. defamation) ○ Also outside of federal jurisdiction--would be limited to criminal law or POGG

6 ● Taschereau (dissenting): not criminalizing communism but preventing conditions that favour the development of crime, including by controlling property--validly in 92(13) ○ Fundamental liberties of press and speech would become privileges if misused for communism and rights “must be exercised within the bounds of legality” Dupond v City of Montreal ● Bylaw with 30-day prohibition on public gatherings--challenged as invasion of 91(27) and infringement of fundamental freedoms of speech, assembly, association, prss, religion → ​intra vires ● Beetz (majority): none of the freedoms are entrenched or within an exclusive jurisdiction ○ Assemblies ≠ speech --“display of force rather than… appeal to reason; their inarticulateness prevents them from becoming part of language and from reaching the level of discourse” ○ No English right to hold public meetings on a highway or in a park--may even be trespass ○ Can be regulated by federal or provincial legislation, depending on aspect ○ Canadian Bill of Rights ​ doesn’t apply to provincial and municipal legislation Ontario v OPSEU ● Ontario Public Service Act ​ prevented public service employees from participating in some political acts ● Basic constitutional structure includes freely elected legislative bodies and neither federal nor provincial legislatures can enact legislation which would “substantially interfere” with that structure ○ But impugned legislation is in essence provincial and regulating provincial public service ● N.b. similar to Australian implied bill of rights protecting freedom of communication to allow for free and informed electoral choice for representative government (Elliot) Bill of Rights ● Enacted in 1960 but not entrenched → only affects federal power and can be amended ● Shaped by international consensus on rights (e.g.​ UDHR ​ and B​ rown v Board of Education)​ and fears about increasing government (expanding administrative state and regulations), especially with internment of Japanese Canadians and 1946 espionage inquiry ● “Without discrimination by reason of race, national origin, clour, religion, or sex” ● Protects life, liberty, security, property, no deprivation without due process; equality; religion; speech; assembly and association; press ● No federal legislation to abrogate, abridge, or infringe B​ ill of Rights​ without express declaration ● Prevents arbitrary detention or cruel and unusual treatment or punishment ● Legal rights: promptly informed of reason, retain and instruct counsel without delay, ​habeas corpus​, no self-incrimination, fair and public hearing by independent and impartial tribunal, presumption of innocence, reasonable bail, interpreter ● Two issues: applicability to previous or exempting statutes, and expansive/restrictive interpretations ● Still in force--continued (limited) relevance for property and fair hearing for rights and obligations R v Drybones ● Indian Act​, s 94(b) off-reserve intoxication liable to $10-50 fine or up to three months’ imprisonment ● NWT Liquor Ordinance, s 94(6) public intoxication liable to fine (no minimum) or up to 30 days ● Challenged 94(b) based on B​ ill of Rights​ 1(b) right to equality → SCC entered acquittal ● Bill of Rights​ as declaration of fundamental rights and freedoms, not just interpretive guide ● But ​Bill​ enacted after Liquor Ordinance → parliamentary sovereignty so B​ ill​ prevailed ○ But B​ urnshine​ “frozen rights” approach (i.e. not creating new rights but preventing infringement of existing rights) → rejects expansive interpretation ● Held to violate equality because it treated Indians differently than other groups AG (Canada) v Lavell ● Challenged loss of status upon marriage for women (and no corresponding provision for men)

7 ● “Equality before the law” ≠ egalitarian → all status Indian women equally treated → law upheld Bliss v AG (Canada) ● Unemployment Insurance Act​: longer qualifying periods for pregnancy benefits than regular benefits and pregnancy as reason for employment interruption specifically excluded from regular benefits ● “Any inequality between the sexes in this area is not created by legislation but by nature” ● Distinguished from ​Drybones ​ (one section of population treated more harshly than all others) because of “complete code” of “additional benefits to one class of women” ● Significant protests from women in pre-C​ harter ​ debates Charter Development Trudeau, “A Canadian Charter of Human Rights” ● Individual dignity distinguishing people from other animals after meeting basic needs → natural rights ○ All men entitled to natural rights due to moral and rational nature; denying rights affronted natural law (elementary principles of justice applying to all humans due to common ability to reason) ● Social contract theory: failing to respect natural rights justifies disobedience and revolution (US, France) ● Constitutional checks as “natural development in a democratic society,” especially after WWII ○ Supported by legislatures, CBA, committees, Quebec Civil Code ● Entrenched bill of rights--price of loss of legislative supremacy → but legislative supremacy seldom pushed to fullest extent anyway, and rights already protected through common law and historic documents Cairns, “Charter versus Federalism” ● Insufficient attention to international aspects of constitutional discussions ● Rejection of parliamentary supremacy, which distinguished Canada from the US → but UK lost status post-WWII ○ Combined with immigrants ( visible minorities who wanted entrenched rights) resulting in diminishing numerical significance of British and French people and doubts about assimilation into UK heritage ○ Further affected by shift away from JCPC and general colony-to-nation movement ● Pride in British heritage linked to Canadianness of parliamentary supremacy, so as UK declined, so did support ○ Charter filled gap in Canadian constitutional identity, with entrenched rights, judicial supremacy, written text ● Increase in ethnonationalism, anticolonialism, liberation movements, and increasingly transnational people and ideas ● UN Charter, UDHR, covenants on civil and political rights, and economic, social and cultural rights ○ Initially rejected with rights protection under British tradition and federalism but eventually became universal way of “increasing [Canadian] accountability to the world community” Russell, “The Political Purposes of the Canadian Charter of Rights and Freedoms” ● Two purposes of the Charter: contributing to national unity, and rights protection ● Initial rejection of constitutional reform (other than Quebec) but Quebec would only patriate if substantive constitutional reform giving Quebec more recognition and power → federal government reluctant to debate ○ But Confederation of Tomorrow Conference raised expectations on responding to Quebec → Charter (common values, fundamental rights, language rights) to unify against decentralism of provincial debates ○ Driven by international (UDHR) and domestic (persecution of Jehovah’s Witness, Japanese Canadian internment, Gouzenko disclosures, repressing trade unionism, immigrants, FLQ crisis) factors ● Intellectual appeal of constitutional rationality (French rationalism, civil law, deduction) ● Threatened to unilaterally achieve constitutional Charter → demonstrated federal government’s commitment/belief, even though it would have been easier to patriate the existing constitution plus an amending formula Weinrib, “Of Diligence and Dice,” “Paradigm Lost?” ● Royal Commission on Bilingualism and Biculturalism (1967): language rights, plus patriation and amending formula ● Resulted in 1971 Victoria Charter: more limited than eventual text; no legal, economic, mobility, egalitarian rights ○ Only political (i.e. fundamental) freedoms, as negative rights; universal suffrage and eligibility; free democratic elections; language rights (but no minority language education)

8 ○ Express provision for limitation (like many post-WWII documents): 1964 Fulton-Favreau formula and 1971 Victoria Charter formula--both giving veto to Quebec but Quebec refused both times ● Challenge was transforming federal, parliamentary democracy into modern, rights-protecting polity ○ Vested judicial review function in existing courts instead of creating specialized constitutional court ○ Drew from other countries’ experiences and international obligations ○ Politicians vs individuals and groups and issues of institutional legitimacy ○ Distinctive model with judicial review and significant institutional detail outlined ● Limitation formula required formulation (1) as law, and (2) with limited permissible reasons ● Notwithstanding clause applies only to certain rights, and expires after five years ● Both s 1 and s 33 as culmination of negotiations ○ Objections to Charter resulted in agreement to remove rights, diminish guarantees, limitation, opt-outs ○ Support for Charter resulted in more rights, broader rights, narrower limitations, removal of opt-ins/outs ○ But always a limitation formula--reflected skepticism of judicial review ● Limitation clause began with “reasonable limits as are generally accepted” → vague, and no “law” needed ○ Mack Truck clause → significant opposition → public hearings and critiques from public interest and experts ○ Despite lack of confidence in judicial review, also lack of confidence in legislatures’ rights protection ● Returned to negotiation among first ministers--s 1 not challenged, given wide public support and legitimation ○ Compromise: s 33 with legislative supremacy for fundamental freedoms, legal rights, equality rights ○ S 33 not arising from nothing → derived from initial opt-in and opt-out provisions ● Ultimately limits on rights became exception rather than rule, with four possible outcomes to Charter challenge: rights guaranteed, legally prescribed limits, constitutional amendment, notwithstanding clause Leclair, “Constitutional Principles in the Secession Reference” ● 1980 secession referendum--not true secession and not all economic ties severed ● Trudeau had pledged that if “No” won, it would be interpreted as a mandate to change the Constitution ○ Immediate action after referendum but all attempts failed → 1980 announcement to proceed unilaterally ○ Included amending formula, referendum to bypass provincial assent, Charter → objected to by eight provinces, three referred to SCC (​Patriation Reference​--contrary to convention) ● “Gang of Eight” had agreed on counter-proposal with no veto in amending formula (but had opt-out) ○ Quebec agreed on condition of financial compensation for provinces opting out ● “Night of the long knives”: other nine provinces struck deal (no compensation for opt outs) with federal government ○ Quebec’s objections: not to constitutional reform but to being treated like any other province Gold, “The Mask of Objectivity” ● Considerable consequences to Quebec: failed to safeguard Quebec’s interests → PQ condemned by liberal opposition ● But also political benefits: could convince Quebecois that English Canada couldn’t be trusted, mobilized separation Bogart, “Courts and Country” ● Independent, tenured judges who ensure rationality and principle vs unaccountable, elitist, unrepresentative judges ● Entrenched bill of rights: minority vindication in open process instead of unresponsive legislators, unifies Canadians, procedural review only, s 33 → vs political rather than popular and not truly democratic to have judicial review ○ Efficacy of political rather than legal change, democratic process and resentment, cost of access to courts Petter, “Immaculate Deception” ● Charter is regressive instrument that is more likely to undermine disadvantaged Canadians’ interests ● 19th century liberal rights document in 20th century welfare state; state rather than private power as antagonist ● Fundamental rights not including housing, employment, food → systematic upper middle class bias ● Ironic to turn to courts for review of laws and negative rights when laws were enacted to counter law’s individualism Hogg and Bushell, “The Charter Dialogue” ● Judicial review as part of dialogue: prompts public debate and results in effective but constitutional laws

9 ● Dialogue only if judicial decision to strike down law can be reversed, modified, or avoided by ordinary processes (ss 1, 33, qualified rights of 7, 8, 9, 12 needing only fair/reasonable, 15); 44/65 cases resulted in amended law (often minor) ● Barriers to dialogue: invalid objective of legislation and too controversial to have legislative response (e.g. M​ orgentaler​) Roach, “The Supreme Court on Trial” ● American debate about judicial activism inappropriately imported into Canada despite structural differences ● Judiciary can be “robust and fearless” since won’t have last word and legislature encouraged to consider rights more ● Problem arises due to critique of “judicial activism” resulting in too much judicial deference Application ● Threshold question: does the C​ harter ​ apply? → “to the Parliament and government of Canada” and “to the legislature and government of each province” Private Action RWDSU v Dolphin Delivery ● Court order restraining RWDSU (union members in dispute with Purolator) from picketing at Dolphin (which worked for Purolator during the strike) ○ Statute not regulating secondary picketing--common law tort of inducing breach of contract ● Peaceful picketing protected under freedom of expression but Dolphin Delivery not related to Purolator so injunction restraining picketing there was reasonable limit under s 1 ● Charter ​ applies to common law (statutory interpretation of s 52, “any law”) but not when it is the basis of private litigation between private parties ○ S 32 “conclusive” on application to private parties: Parliament/legislature and government → only legislative, executive, and administrative branches of government ○ Legislation is the only way that legislatures can infringe on guaranteed rights/freedoms and executive/administrative relies on statutory authority and common law → C​ harter ​ applies ○ “Only insofar as the common law is the b​ asis of some governmental action ​which, it is alleged, infringes a guaranteed right or freedom” ○ “Difficult to define” level of governmental intervention needed for ​Charter ​ to apply ● Application to this case: private parties arguing that common law tort breaches ​Charter ​ 2(b) ○ Judiciary’s actions (i.e. injunction against picketing) isn’t governmental action and “no offending statute” ● Charter ​ applies to delegated legislation, regulations, orders in council, by-laws and to private litigation where one private parties invokes or relies on governmental action ○ But does not apply to private party A suing private party B based solely on common law ● But “judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution” ● Highly critiqued decision--e.g. anomalies where some provinces codify common law and others don’t ○ Issue of distinguishing courts from government so not being bound by C​ harter​ when some provisions directed specifically at courts (e.g. legal rights) ○ Alternative (Hogg): common law should be subject to ​Charter ​ once it can be enforced ○ Non-application of Charter to judiciary largely ignored but non-application to common law in private litigation and to court orders after litigation still followed Governmental Actors ● Test: “routine or regular control” ○ Many quasi-governmental organizations excluded (e.g. Canadian Blood Services, Vancouver Organizing Committee, multiple universities, possibly public schools--but likely covered) ■ Also fails “implementing a specific governmental policy or program” test ○ Crown corporations (governmental ownership): unsettled, CBC has program independence

10 McKinney v University of Guelph ● Mandatory retirement policies--are universities government actors? Did the provincial human rights code (only protecting people from 18-65) violate s 15? ○ Found that universities are not government actors and mandatory retirement policies aren’t government action, in the absence of government participation of compulsion ○ Human rights code found to violate s 15 but upheld under s 1 ● Deliberate legislative choice to exclude private entities since only government that can enact and enforce rules that impinge on individual freedoms, and judicial review of private activities would be (a) burdensome on courts and (b) :diminish the area of freedom within which individuals can act” ● Statutory creation is insufficient to make an entity subject to charter (would include corporations) ○ No statutory compulsion for mandatory retirement policy, and incorporation and public function are insufficient--distinct from municipalities which “enact coercive laws” ● Overlap between provincial government and universities through statutes, policies, funding, limited university discretion on tuition, control over programs → regulation by/dependence on government ○ But other entities also receive government funding and universities have own governing bodies so government has no l​egal power to control universities ○ Legal autonomy also demonstrated by traditional position in society and academic freedom ○ N.b. P​ ridegen​: academic freedom and ​Charter ​ overlap rather than being antagonistic (disciplined for Facebook comments critiquing professors); university exercised statutory power of compulsion ● Dissent: rejection of “minimal state” with three tests of control over the entity, function (performing traditional government function or responsibility), statutory authority and public interest ● cf. ​Harrison v UBC:​ majority of Board appointed by provincial government and close monitoring of expenditures but still not government → need ​routine and regular control Stoffman v Vancouver General Hospital ● Mandatory retirement policy and all regulations had to be approved by Health Services ● Hospital was not part of government and regulation wasn’t an act of government because routine control was in hospital’s board of trustees and public service of health care isn’t government function Douglas/Kwantlen Faculty Association v Douglas College ● Mandatory retirement provision in collective agreement between college and union ● Held to be government because board was appointed by provincial government and minister established, issued, approved bylaws → distinguished from ​McKinney​ and H​ arrison ● Government “both in form and in fact” whereas UBC and Guelph were “essentially autonomous” ● Follow-up: L​ avigne​ faculty member challenging union dues for causes he didn’t support (2(b) right not to speak not violated) → community college’s Council of Regents subject to routine or regular control by education minister Vancouver Transportation v Canadian Federation of Students ● Summarizes case law: two ways to determine ​Charter ​ applicability--nature of the entity and nature of the activities → nature, significant control exercised over it, or governmental activities ○ Where governmental nature or significant control, all activities subject to ​Charter ○ Where non-governmental entity, only governmental activities subject to C​ harter ● BC Transit and TransLink bound by ​Charter ​ because of routine and regular control ○ BC Transit is a statutory body designed by legislation as “agent of the government” and entire board of directors is appointed by government → actual government ○ TransLink vast majority of governing body is appointed, taxes, levies, governmental approval of strategic transportation plan → substantial control ○ Also E​ ldridge​ principle of not shirking Charter obligations by conferring governmental powers on private entity → was not privatization but “administrative restructuring” for increased local power

11 Governmental Acts (by Non-Governmental Actors) ● Test: “implementing a specific governmental policy or program” Eldridge v British Columbia (AG) ● Deaf claimants seeking declaration of s 15 violation for failure to publicly fund sign interpreters when receiving medical services → hospitals with discretion to decide which services should be free ○ Medical Services Commission has delegated authority to decide what is “medically required” ○ Sign language interpretation neither free nor covered ● Two issues: (1) identify source of alleged s 15 violations--entities exercising their discretion and (2) whether the ​Charter applies to those entities ● Two ways for Charter to apply to provincial legislation (which, per D​ olphin Delivery​, it does) ○ Unconstitutional on its face by violating a Charter right and not being saved by s 1 ○ Valid legislation but delegated decision-maker infringes Charter in applying legislation (i.e. action taken under statutory authority; action must be in scope of law and since law must be under Charter, so are actions) ■ But possible to give authority to bodies not covered by the Charter--e.g. Corporations ■ MSC and hospital are entrusted to implement specific government policies--distinct from corporations, which are fully autonomous after incorporation ■ Where source of infringement is an actor and not a law, must establish that s 32 applies ● Once part of government, Charter applies to all its actions (including the “private” ones) ○ “Governments should not be permitted to evade their Charter responsibilities by implementing policy through the vehicle of private arrangements” ● But private entities may also be subject to Charter in respect to “inherently governmental actions” → question of what is “inherently governmental action” but definitely includes furthering specific program/policy ○ Public function alone is insufficient and only governmental actions scrutinized ● Consider (1) nature of actor as governmental or non-governmental and (2) where non-governmental, nature of action ○ Insufficient for hospitals to say that they are not “government” (S​ toffman​) → providing medical services constitutes implementing government policy (vs S​ toffman ​ with internal hospital management) ○ “Alleged discrimination… is intimately connected to the medical service delivery system instituted by the legislation. The provision of these services is not simply a matter of internal hospital management” ○ Medical Services Commission: exercising delegated power to determine whether service is a benefit → exercise of discretion is acting in governmental capacity, so subject to Charter Slaight Communications Inc v Davidson ● Adjudicator acting pursuant to ​Canada Labour Code-​ -exercising powers conferred by legislation ○ Ordered letter of reference for wrongfully dismissed employee (violated 2(b) right not to speak, saved by s 1) ● “The adjudicator is a statutory creature: he is appointed pursuant to a legislative provision and dervies a​ ll ​ his powers from the statute” → legislation can’t confer power to infringe Charter or would itself infringe Charter Blencoe v British Columbia (Human Rights Commission) ● Lengthy delays in HRC’s processing of sexual harassment complaints against Blencoe--s 7 violation ● Not part of or controlled by government by acts subject to Charter ○ “Implementing a specific government policy or program” and exercising “statutory powers of compulsion” (e.g. investigation, compelling production of documents, redress) ● Result: administrative tribunals and labour adjudicators are bound by Charter while courts aren’t (​Dolphin Delivery)​ ○ But courts to develop common law in accordance with Charter values and administrative law (​Doré; Loyola)​ R v Buhay ● Charter does not apply to private security guards--question is whether they were acting as state agents ○ Not government agents or employees, and no governmental control other than loose framework of regulation ○ Arrest function only subject to Charter if, case-specifically, guard acted as state or police agent

12 Governmental Inaction ● S 32 “all matters” of the government--includes inaction where Charter right imposes positive obligations to act ○ E.g. minority language rights (s 23) do require governments to take positive actions to respect rights ● Generally, once governments decide to implement a policy or program, must do so in non-discriminatory manner ○ But limited judicial support for s 15 imposing obligations to legislate against inequalities Vriend v Alberta ● Alberta’s ​Individual Rights Protection Act ​ prohibited discrimination in public life and established commission for enforcement--but sexual orientation deliberately not included among prohibited grounds ○ Vriend: employee at Christian institution and dismissed after being asked if he was gay ● SCC: reads in sexual orientation into the Act ○ Determines whether Charter applies pursuant to s 32--considers nature of legislature’s decision, effect, and neutrality → ​threshold test is: whether there is “some matter within the authority of the legislature” ○ Rejects deference argument--relies on flawed distinction between legislative action and inaction, and misconstrues nature of deference (should be in s 1 analysis and remedy analysis) ○ Rejets argument that there needs to be an “exercise” of “s 32 authority” for Charter scrutiny → nothing in text or jurisprudence demanding narrow reading → only speaks of “matters” ○ IRPA challenged for underinclusiveness; if omissions not subject to Charter challenge, then form instead of substance determines whether Charter applies → illogical and unfair ○ Can also read decision to omit sexual orientation as an “act,” especially given government’s actions Dunmore v Ontario (AG) ● Fundamental freedoms traditionally civil libertarian (i.e. “prohibits gags but not compelling the distribution of microphones”) so Charter doesn’t apply to governmental inaction infringing civil liberties ● But may have positive obligations to protect the freedom of association of vulnerable groups ● Labour legislation excluding agricultural workers’ right to form unions and bargain collectively ○ 2(d) with positive obligation on state to extend protective legislation to unprotected groups ○ Rejects argument that inability to unionize is due to private action--but evolving understanding of Charter ○ Private actors’ infringement of fundamental freedoms is factual context to legislation, s 15 can extend underinclusive legislation, and legislation can “permit” private actors’ interference ● But does not mean that state is obliged to act where no legislation is enacted ○ Still, once state regulates a private relationship (i.e. employer-employee), formalistic to render it “private” Intersections with the Courts and Common Law BCGEU v British Columbia (AG) ● Charter applies to common law when relied upon in litigation involving government or public purpose ○ Also applies when Crown uses common law in criminal proceedings (i.e. state prosecution--governmental action; ​Swain ​ and raising NGRI against accused’s wishes violating Charter; D​ agenais​ publication bans) ○ “If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken” ○ Also applied to same-sex marriage with common law definition of marriage violating s 15: ​Halpern ● CJSC issued injunction restraining government employees picketing a courthouse due to interference with access to courts as contempt (common law breach of criminal law)→ challenged by union as 2(b) violation → Charter applies ○ Court acting on its own motion and not at instance of private party → action is entirely “public” ○ Criminal law used to vindicate rule of law; like other branches of criminal law, contempt has to be in line with Charter → injunction held to not violate Charter Hill v Church of Scientology of Toronto ● Charter not applying directly to common law disputes between private parties but still relevant

13 ● Libel action by Crown attorney against Scientology after Church publicized criminal contempt proceedings that they planned to commence against Hill, alleging misleading of judges and breaching orders to seal documents ○ Found liable at trial, appeal dismissed at both ONCA and SCC ● Courts with inherent jurisdiction to modify common law to comply with prevailing social conditions and values → extends to interpretation of common law in manner consistent with Charter principles ● Private parties not owing each other constitutional duties and can’t found their causes on Charter rights because there are no Charter rights in the absence of state action--but c​ an​ argue that common law inconsistent with Charter values ○ Can only make incremental changes to common law; far-reaching changes left to legislature ○ Where inconsistent with Charter values, more flexible balancing than s 1 analysis → generally, weigh Charter values against principles underlying common law ■ Also not a split onus of p​ rima facie ​violation and subsequent justification → party alleging inconsistency with values proves both (a) inconsistency and (b) when balanced, should be modified R v Salituro ● Common law rule preventing spouse from testifying against accused in criminal proceedings ○ No exception where spouses are irreconcilably separated and witness spouse wants to testify ○ Held to be contrary to dignity of spouses who wanted to testify → rule abrogated and exception made RWDSU v Pepsi-Cola Canada Beverages ● Secondary picketing still determined by common law ● “Charter rights… constitute a fundamental element of the Canadian legal order… The Charter must thus be viewed as one of the guiding instruments in the development of Canadian law” ● “Wrongful action” model: secondary picketing is lawful unless involving harmful conduct amounting to tort or crime ○ Lawful at retail outlets but not personnel’s homes (amounts to intimidation and private nuisance) ● Distinguished from ​Dolphin Delivery ​ (where presumption was that proposed picketing would be tortious) Grant v Torstar Corp ● Existing defamation common law gave insufficient protection to freedom of expression ○ Communications on matters of public interest essential to democracy and truth, even if defamatory ○ New defence: responsible communication on matters of public interest Doré v Barreau du Québec ● More flexible and deferential approach for administrative discretion than full s 1 analysis of ​Slaight ​ and B​ lencoe ● Lawyer challenged Disciplinary Council’s reprimanding of letter to a judge found to be rude and insulting → 2(b) ● Decisions will be reasonable if Charter value properly balanced with statutory objectives (i.e. robust analysis) ● Also reflected in ​Loyola:​ private Catholic school exception from required curriculum was denied → unreasonable ○ Two-step analysis: (1) does challenged decision engage the Charter by limiting its protections? (2) did the decision proportionately (maximally) balance the Charter protections against the statutory mandate? ○ Also applied in T​ rinity Western​: community covenant discriminated against LGBTQ community Territorial Limits ● Foreign governments not bound and comity (deference and respect) where Canadian actions outside of Canada ○ Significant limitations on applying Charter to Canadian governments abroad R v Cook ● Cannot determine extraterritorial application by text of 32(1) alone--also consider sovereignty ○ General rule in public international law is non-enforceability of laws beyond state territory ● Arrested on warrant pursuant to extradition request → VPD interviewed Cook in US but violated 10(b) ○ Charter held to apply on foreign territory where act falls within s 32 based on actor’s nationality and where applying Charter wouldn’t conflict with concurrent territorial jurisdiction of foreign state ○ Arrest, detention, and interrogation initiated and carried about Canadian law enforcement

14 ○ Canadian extradition request, Canadian offence, Canadian prosecution, US officials limited their interference, and applying Charter wouldn’t interfere with US criminal procedures R v Hape ● Narrower approach than​ Cook-​ -whether RCMP officers (permission from local authorities who would be in charge of investigation) subject to Charter during search and seizure in Turks and Caicos for money laundering ● Charter held to not apply → “comity means that 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” ○ But “deference ends where clear violations of international law and fundamental human rights begin” ○ Canadians were acting as agents of Canada but no consent from Turks and Caicos for Charter application ● New test: (1) whether conduct of Canadian state actor is at issue and (2) whether challenged state action is in respect of a matter falling within the authority of the Canadian government → generally not met because no authority outside of Canada but two exceptions: ○ Violations of human rights: can’t invoke comity to allow Canadians to violate Canada’s international obligations (but can generally participate in investigations abroad under foreign state’s laws) ■ Foreign law prevails due to comity: sovereignty and non-intervention ■ Permissive rule: c​ an​ investigate--but prohibited where foreign law would violate Canada’s international obligations on human rights ○ Consent: Charter can apply if host state consents → would then be within authority of Parliament Canada (Justice) v Khadr ● CSIS interviewed Khadr during Guantanamo Bay detention--records shared with US but Canada argued that disclosure obligations didn’t apply extraterritorially → argument rejected and disclosure ordered ● If Guantanamo is in line with Canada’s international obligations, Charter does not apply and application for disclosure fails; but if Canada violates own obligations under international law, then Charter applies ○ Issue becomes whether handing over Guantanamo interviews to US violated international obligations → SCOTUS itself held that detainees illegally denied access to h​ abeas corpus​ and violated ​Geneva Conventions ○ Canada is signatory to ​Geneva Conventions​ and h​ abeas corpus​ protected both by Charter and international treaties → CSIS violated obligations through participation in Guantanamo process → Charter applies Amnesty International v Canada ● Amnesty International and BCCLA applying for judicial review of Afghan detainees and detention by Canadian Forces and transfer to Afghan authorities → inadequately safeguarding against torture ● Charter did not apply--K​ hadr​ distinguished because Canadian citizen claiming access to documents in Canadian possession vs. non-Canadians with no attachment to Canada or its laws → realm of international humanitarian law ○ Afghanistan also didn’t consent to Charter applying and Canadian Forces not in control of detention Standing Canada v Downtown Eastside Sex Workers United Against Violence Society ● Borowski​: standing for declaration of invalidity if there is a serious justiciable issue as to invalidity, directly affected by it or genuine interest as a citizen and no other reasonable and effective manner to bring issue before Court ○ Interrelated factors to be weighed in discretion to grant or deny standing → not free-standing tests ● Purposive approach to standing: balance underlying rationale for restricting standing with need to assess legality of government action; balance access to courts and preserving judicial resources ○ Underlying limitations: scarce judicial resources, screening out busybodies, ensuring courts have contending points of view from those most directly affected, preserving proper role of courts (justiciability) ■ Scarce resources concerned with effective operation of court system as a whole ■ Mere busybodies: multiplicity of actions and ensuring that π with personal stake gets priority (but may be overstated and courts can screen for merit, intervene, and award costs to discourage) ■ Adversarial system → concrete adverseness; personal stake ensures thorough and diligent arguments

15 ○ Legality: state action should conform to Constitution ​and​ there are practical and effective ways to challenge ■ Public interest standing prevents immunization from judicial review → generous, liberal approach ○ Discretion: weigh factors of serious justiciable issue, nature of π’s interest, other reasonable, effective means ● (1) serious justiciable issue, (2) whether π has real stake or genuine interest, (3) whether proposed suit is a reasonable and effective way to bring the issue before the courts → purposive and flexible approach ○ But all else being equal, π with standing as of right will generally be preferred ○ Reasonable and effective means: previously a strict requirement → but should be purposive (linked to legality), considering all the circumstances, and flexible (economical use of judicial resources, suitable for adversarial setting, whether it would serve purpose of upholding legality) ○ Consider capacity to bring forward a claim (resources, expertise, sufficiently concrete and well-developed factual setting), public interest (transcends interests of directly affected and access to justice for disadvantaged persons), realistic alternative means (e.g. parallel proceedings), potential impact on others’ proceedings ● Application: parallel proceedings in other provinces (but non-binding due to jurisdiction), different issues and perspectives, other litigation management strategies short of denial of standing, inherent unpredictability of criminal trials and unlikely to have the same claim, no sex workers willing to bring a claim (but willing to give evidence), comprehensive challenge with public importance, skill, and thoroughness → standing granted Limitation Section 1: “Prescribed by Law” and “Demonstrably Justified” ● Two-step process: (1) whether Charter right was breached by state act, (2) whether breach was justifiable ● Justification: party defending against Charter challenge must show that limit on right was “prescribed by law” ○ Sunday Times ​ (ECHR): injunction on publishing article about thalidomide-related birth defects due to interference with ongoing legal proceedings and contempt of court for breach ■ Needs to be adequately accessible and intelligible enough to allow citizen to regulate their conduct ■ Precision: consequences of action must be reasonably foreseeable ■ Does not need to be rigid or certain--laws often mildly vague to allow for adaptation ○ Also allows for public accountability for restricting constitutional rights → rule of law ○ Usually passes--exception: L​ ittle Sisters​ internal memo targeting queer material not prescribed by law R v Therens ● Accused required to accompany police officer to take breathalyzer--not informed of 10(b) rights ○ Held to have constituted detention, 10(b) violated, and not”prescribed by law” ○ Statute required breath sample “as soon thereafter as is practicable”--distinguished from “forthwith” ● Two-step analysis: limit “authorized by law,” and law is sufficiently precise (i.e. against vague drafting) ○ Reflects rule of law and fundamental justice requirements in s 7 ○ But vagueness usually dealt with in proportionality analysis of s 1 (​Taylor)​ ● “Prescribed by law” chiefly concerned with distinguishing between limit imposed by law and an arbitrary limit ○ Law includes express provision or necessary implication from statute, regulation, or its operating requirements, as well as common law Osborne v Canada (Treasury Board) ● Public Service Employment Act ​preventing public servants from “engaging in work” for or against political candidate → violated 2(b) but prescribed by law even though “engage in work” is vague → fails at proportionality ● Vagueness significant in two ways in s 1 analysis: (1) so vague that it can’t be interpreted as law (i.e. restraining state power) due to general discretion or obscure language or (2) not be a reasonable limit since overbroad Greater Vancouver Transportation Authority ● Whether advertising policies preventing political advertisements of TransLink and BC Transit were “law” ○ Policies enacted pursuant to statutory authority, permitting commercial but not political advertising

16 ○ Broad discretionary powers delegated to board of directors to adopt rules, including bylaws and contracts → logical to presume intention of binding rules where delegated authority to make rules ○ Policies aren’t for internal use but to establish individuals’ rights, applies to all advertisers, accessible, precise ● Prescribed by law: (1) was the government entity authorized to enact the impugned policies and were the policies “binding rules of general application”? (2) were the policies sufficiently precise and accessible? ○ Acts to preclude arbitrary and discriminatory government action, and give citizens a reasonable opportunity to know what is prohibited so they can act accordingly ○ In addition to ​Therens,​ includes municipal by-laws, collective agreements involving government entities, rules of regulatory bodies → authorized by statute, accessible and precise, binding rules of general application ● Distinction between rules that are legislative in nature and administrative in nature ○ Administrative: purpose is administrative efficiency, key question is whether it’s “indoor” management→ meant for internal use, informal, no express statutory authority needed, usually only internally accessible ■ Can be interpretive aids in applying laws but aren’t laws themselves ■ Not intended to establish individual rights, obligations, or entitlement ○ Legislative: not administrative ​and ​ establishes norm/standard of general application, pursuant to rule-making authority (delegated power), but doesn’t need to be statutory ■ Only need (1) binding, (2) general rather than specific application, (3) accessible and precise ● Generally, liberal approach to precision requirement and flexible approach to “prescribed by law” on both form and articulation of limit on C​ harter ​ right (standard intelligible to public and those applying the law) ○ Narrow approach would lead to excessive rigidity in system based on framework legislation and discretion R v Oakes ● Rebuttable presumption of intent to traffic once possession had been proven → violates 11(d) ○ Valid legislative objective but no rational connection between possession and intent to traffic ● Two functions of s 1: constitutionally guaranteeing rights and freedoms, and stating justificatory criteria for limits ○ S 1 analysis begins from understanding that impugned limit violates constitutional rights ○ “Free and democratic society”: includes inherent dignity of the human person, commitment to social justice and equality, accommodating a wide variety of beliefs, respect for cultural and group identity, faith in social and political institutions that enhance participation in society → ultimate standard for justification ● Rights and freedoms not absolute--may be limited if inimical to collective goals of fundamental importance ● Onus of justifying limit is on party seeking to uphold the limitation, based on preponderance of probabilities ○ Reasonableness, justifiability, free and democratic society--can’t be proved beyond a reasonable doubt ○ But still applied rigorously and degree of probability needed depends on nature of the case ○ Evidence generally required--should be cogent, persuasive, demonstrate consequences of imposing (or not) the limit, alternative measures available to legislators ● Two central criteria: (1) pressing and substantial legislative objective and (2) reasonable, demonstrably justified means ○ Means must be proportional, balancing interests of society and rights-holders: ​(1) rational connection--not arbitrary/unfair; (2) minimal impairment; (3) proportionality of rights-limiting effects + objective ■ Rational connection: involves some effectiveness threshold → law must reasonably advance the pressing and substantial purpose for which it was enacted ■ Proportionality: effects inquiry goes beyond “rights infringement” to consider nature of right or freedom, extent of violation, degree that limit trenches on integral principles of free and democratic ■ More serious deleterious effects requires more important objective to be justified Big M ● Exceptional case of failing “pressing and substantial legislative objective” even though most do not fail ● Compelling religious practice of Sunday Sabbath contradicted 2(a) ● Cannot rely on purpose different than purpose of initial enactment of legislation → deter uncertainty and relitigation

17 ○ But B​ utler,​ shifting purpose ≠ permissible shift in emphasis Dagenais v Canadian Broadcasting Corp ● Refines third stage of proportionality test → weight deleterious effects of impugned measure against objective a​ nd ​ actual saltuary effects of implementation (i.e. abstract objective might be sufficient, but actual effects aren’t) ● Proportionality between deleterious effects of rights-limiting measure and objective, and proportionality between deleterious and salutary effects of measure ● But third stage usually conclusory (as laws fail at minimal impairment stage), with ​Sharpe ​ as an exception Edmonton Journal v Alberta (AG) ● Judicature Act​ limiting publication information coming out of court proceedings in matrimonial disputes ○ Legislative objective of protecting individual privacy → held to not be justified under s 1 ● Two possible approaches to s 1 analysis: contextual approach and abstract approach → affects balancing analysis ○ Both approaches require ascertaining the underlying value that infringed right is designed to protect → requires purposive interpretation of Charter rights ○ Also need to determine legislative objective based on legislator’s intent in enacting specific legislation ○ S 1 analysis only where both objectives of Charter right and legislation identified and in conflict ● Abstract approach (Cory): freedom of expression as marketplace of ideas ● Contextual approach (Wilson): public’s right to open court process ● Cannot balance one value at large and conflicting value in its context or balance as private vs public ● Contextual approach recognizes that particular right or freedom might have different value based on context ○ Also reflected in ​Dagenais ​modification and focus on actual deleterious and actual salutary effects Irwin Toy ● “Prescribed by law” not a high standard--just “intelligible standard according to which the judiciary must do its work” ○ Always discretionary since standard can’t provide exclusive list of applicable circumstances--but where no intelligible standard and legislature has plenary discretion in broad circumstances, not meeting threshold ● Legislature mediating between competing claims of different groups in the community ○ If reasonable assessment on where to draw the line, deference required (especially if legislature has to weigh conflict scientific evidence, allocate scarce resources on this basis, or protect vulnerable groups) ● Government acting as singular antagonist of individual whose right has been infringed (i.e. civil libertarian) ○ E.g. legal rights--responsibility for prosecuting crimes vs fundamental justice, and no further claims ○ Court has more certainty on whether least drastic means were chosen, especially when relating to authority and impartiality of judicial system → degree of certainty not available when mediating competing claims ● Three forms of deference (Moon): findings of fact (or lower standard of proof when establishing factual basis), legislature’s accommodating of competing values or interests (reasonableness standard) including vulnerable groups, naked deference (lowering standard of justification under s 1; e.g. low value speech) R v Lucas ● Criminal defamatory libel provisions--upheld as justified restriction on freedom of expression ● McLachlin: low-value speech should only affect final balancing and not rational connection or minimal impairment ● Majority: rational connection and minimal impairment require some balancing of interests so value matters Choudhry, “So What is the Real Legacy of Oakes?” ● Conflict and inconsistency given need for proof to support each stage of s 1 and reality of policy making under conditions of factual uncertainty → becomes issue of risk allocation on empirical uncertainty, applied inconsistently ○ Risk presumably falls on government since rights are the rule and infringements the exception--but may result in being impossible to justify (especially with minimal impairment) ○ Alternative: not requiring so much evidence--but would be against text requiring “demonstrably justified” ○ Compromise: where conflicting or inconclusive social science evidence, question is whether government has “reasonable basis” to conclude that problem exists, means address it, and is minimally impairing

18 ○ Also common sense or logic to overcome evidentiary gaps--but questions of doctrinal boundaries where inconclusive evidence (e.g. ​RJR MacDonald​) or based on circumstance (e.g. T​ homson Newspapers​; H​ arper​) ● Requirement for evidence largely not cited by academics and Court--but increasingly central to jurisprudence ● No factual record in ​Oakes ​ due to parties’ lack of knowledge that they had to produce one ● Only evidence is usually approximations and extrapolation from existing evidence, inferences, guesses ● Issue where many disputes are ultimately factual disputes about nature of social problems and policy efficacy Section 33: “Notwithstanding” Ford v Quebec (AG) ● Only case where SCC reviewed use of s 33 ● PQ excluded from final patriation debates → attempted to shield provincial laws from Charter with omnibus amendment enactment (i.e. added standard override clause to all pre-Charter legislation), applied retroactively ● Challenge to French-only signs under both ​Quebec Charter ​ and Canadian Charter by being insufficiently specific on which rights that legislation was intended to override ○ Argued that override legislation needed to refer to specific rights and not just section numbers to draw attention of public and legislature ● Issue of meaning of s 33: legislative supremacy vs necessity of fully informed democratic process in override ○ Irrelevant since s 33 only lays down form requirements, not substantive review of policy ○ Nothing in terms of s 33 that legislature has to justify decision to override Charter instead of just expressing it ○ Can’t always foresee how legislation would have to infringe Charter and which provisions → omnibus bill that Act will operate notwithstanding the Charter is valid ● Sufficiently express if it refers to the number of section, subsection, or paragraph of Charter to be overridden; analogous to general legislative drafting for amendments and repeals ● Omnibus method also valid but retrospective application is not → can only be prospective derogation Weinrib, “The Notwithstanding Clause” ● Can give courts more confidence in judicial review and insulates from argument that judicial review is anti-democratic ○ Contrary to other pro-judicial review arguments that see s 33 as undermining Charter ● Ability to expressly abrogate Charter rights means judges can carry out responsibilities and protect normative values underlying rights, with governments wanting to disregard Charter rights taking responsibility in legislature and public ○ “The notwithstanding clause designates the appropriate forum for realizing such preferences [of cost, convenience, expediency, or tradition], the forum in which governments stand politically accountable to those whose rights are at stake.” Hiebert, “The Notwithstanding Clause” ● Four categories of use: political protest, risk aversion when unsure how rights will be interpreted, risk aversion when unsure how s 1 will be interpreted, political disagreement with SCC jurisprudence ○ Political protest: F​ ord ○ Risk aversion on rights interpretation: underdeveloped case law on subject matter (especially s 15 initially) ■ Quebec with pension eligibility, Saskatchewan with back-to-work legislation after strikes ○ Risk aversion on s 1 interpretation: used initially but declined with general public dislike of s 33 and Charter popularity; e.g. Quebec with religious instruction in schools ○ Political disagreement: ​Ford ​ and Alberta M​ arriage Amendment Act​ (symbolic, since marriage is s 91) ● Potential use: revising legislation after suspended judicial declaration of invalidity ○ Time frame may be insufficient if government unwilling to act promptly, requires extensive consultation, or election has delayed effective period → usually results in asking for more time (​Feeney​; C​ arter​) Remedies ● Initially believed that s 24 was sole source of remedial relief → B​ ig M​ with s 52 for declarations of invalidity

19 ○ 24(1) is individual remedy and 52 is fundamental principle of constitutional supremacy → more generous standing requirements (corporations can then also make s 7 claims in criminal prosecutions) ○ Limits: corporations that can’t claim infringement of own rights can’t bring independent civil actions ● Generally, s 52 for unconstitutional laws and s 24(1) for unconstitutional acts by public officials (​Ferguson)​ ○ S 52 if unconstitutional effects of a law (not a personal remedy--can seek for impacts on both self and others) ○ S 24 if unconstitutional government acts under fully constitutional legal regimes (unconstitutional effects of action, not law; personal remedy so can only be invoked by a party alleging violation of own rights) ○ Generally no s 24 remedy if s 52 remedy granted--but can be granted if necessary ● Superior courts always have jurisdiction to award both remedies (legislation stripping that would be unconstitutional) ○ But clear legislation can deprive other courts and tribunals (C​ onway)​ , but presumption that administrative tribunals that can decide questions of law can consider the Constitution (M​ artin)​ Roach, Constitutional Remedies in Canada ● Main purpose of 24(1) and 52 is providing effective and meaningful remedies for individuals and society; includes compensation, correction of harm, vindication of Constitutional values, ensuring future compliance ○ Disagreements on appropriate role of judiciary: remedial vs public law model ● Main constraints: need to be fair, respect separation of powers, recognizing harms flowing from remedies granted, proportionality and whether there are less drastic remedies and whether governments can justify limited remedies ● Contextual: e.g. declarations more appropriate for initial non-compliance Section 52 ● Can be overly broad to find entire law invalid → severance, reading down, reading in, constitutional exemptions ○ Reading down: prevent unconstitutionality if law is given its broadest interpretation → both a remedy for invalidity and an interpretative technique to avoid invalidity (presume legislature wanted constitutional law) ○ Constitutional exemptions: law is in force but inapplicable on case-by-case basis ● Also problematic for underinclusive laws → invalidity would deny benefits currently being provided ● Raises concerns about judicial usurpation of legislative role and creates legal vacuum → temporary suspension of declaration of invalidity (but may not provide redress for violation at bar at all) Schachter v Canada ● 15 weeks of maternity benefits for birth mothers, 15 weeks of parental leave for adoptive parents → claim for paternity benefits denied → challenged as violation of s 15 → granted 24(1) remedy extending leave to natural parents ● Severance (reading down): used to minimize interference with laws if offending portion can be defined in a limited manner → declare only offending portion inoperative and maximize legislative purpose ○ Test: is what remains so inextricably bound up with the part declared invalid that it cannot independently survive, or would legislature have enacted only the part that survives at all? ○ Assumes that legislature would have passed sound part alone → if not, may also have to invalidate other parts ● Reading in: akin to severance, difference is manner in which inconsistency is defined (statute wrongly excludes something → logical remedy is to include the excluded group and extend the reach of the statute) ○ Arbitrary to treat statute granting benefits except to a group different than statute granting to only one group ● Purpose: twin guiding principles of respect for the role of the legislature and the purposes of the Charter ● First step: define the extent of the inconsistency (how does it violate the Charter and how is it not saved by s 1) ○ May be broad (e.g. failing rational connection) or overly impairing/disproportionate (more flexible) ● Second step: decide between severance, reading in, or striking down entirely ○ Severance is more precise than reading in: should not read in if unclear how legislation should be extended ○ Legislative objective and means: cannot read in if it would depart from unequivocal choice of means and must consider degree to which courts can make decisions that affect budgetary policy (can’t read in if substantial) ○ Degree of change to remaining part (e.g. relative size of included and excluded groups)

20 ○ Significance of remaining portion: if longstanding or significant (e.g. encouraged by Constitution, e.g. human rights codes), likely would have passed without offending part ● Third step: decide if declaration of invalidity should be temporarily suspended (distinct inquiry from remedy itself) ○ Appropriate if striking down would pose danger to public, threaten rule of law, or underinclusive but unsure if government would extend benefits → but is contrary to enforcement so reading in preferred ● Application: positive right that provides benefit but unclear objective and excluded group outnumbers included group → shouldn’t strike down immediately or read in (substantial intrusion) → suspended declaration of invalidity Vriend v Alberta ● Define inconsistency: exclusion of sexual orientation from protected grounds → unjustifiably infringes s 15 ● Determine appropriate remedy: violation from exclusion so reading down is unavailable and multiple sections so severance would be akin to striking down entire Act → read in if consistent with twin guiding principles ○ Purpose of IRPA: recognize and protect inherent dignity and inalienable rights by eliminating discrimination → reading in would minimize interference with legitimate purpose (vs striking down entire legislation) ○ Argued that reading in would be conflict with religious grounds and be contrary to Charter purposes → disposed of with internal balancing mechanisms and reading in would further Charter’s purpose ○ Sufficiently precise (despite lack of definition of “sexual orientation” and impacts on other sections, which legislature can subsequently amend), limited budgetary repercussions, no deleterious impact on remainder of legislation (and small relative size of excluded group) ○ May interfere with legislative intent--but (a) all Charter scrutiny does that, (b) deliberate exclusion isn’t so central that legislature would have chose to not enact at all, (c) legislature deferred issue to court ○ Also not undemocratic → democracy requires taking into account minority interests ● Parliamentary safeguards remain: can modify amended legislation and use s 33 → read in with immediate effect ● Dissent: reading in may be appropriate if there wasn’t clear legislative intent to exclude → legislation might be amended by adding in sexual orientation to each impugned ground, defining it, overriding, etc ○ Shouldn’t dictate amendment except in the clearest of cases → suspended declaration of invalidity M v H ● Exclusion of same-sex couples from spousal support unjustifiably infringed s 15 ● Remedial precision to read in “two persons” instead of “a man and woman” which would entitle to spousal support → but opting out through cohabitation or separation agreement wouldn’t be available ○ Reading in would have significant repercussions for separate and distinct schemes → can’t assume that legislature would have enacted statute in its altered form → choose between striking down and severance ○ Striking down would be excessive since only “spouse” definition offends → sever so that section alone is of no force or effect, temporarily suspended for a period of six months (significant cost in litigating immediately) R v Sharpe ● Explicit and strong reading in of exemptions to prevent overbreadth for possession of child pornography ○ Exemptions for self-created expressive material and private recordings of lawful sexual activity ● Complies with requirements of (1) obvious legislative objective that reading in would further, (2) means aren’t so unequivocal that reading in would unacceptably intrude, (3) not substantial budgetary interference ○ Purpose is preventing children from harm and exemptions are circumstances that are furthest from objective ○ Not a deliberate exclusion of exemptions (likely caught incidentally) so not intrusion into means R v Ferguson ● RCMP officer convicted of manslaughter → argued mandatory minimum was contrary s 12 → 24(1) granted ● Justification for exemptions: better to grant exemption than strike down mandatory minimum that is valid in most applications (52(1) is blunt tool) and consistent with goal of preserving law to the maximum extent possible ● But counter-considerations: ○ Inappropriate to grant exemption → remedy must be under non-discretionary 52 (as a law, not an action)

21 ○ Reads in discretion when mandatory minimum is intended to exclude discretion ○ Raises rule of law concerns of certainty, accessibility, intelligibility, clarity, predictability (divergence between law as written and as applied) → impairs knowledge of law, might be overapplied, duplicates effort ○ Deprives Parliament of certainty on constitutionality of law and opportunity to remedy it Re Manitoba Language Rights ● Failure to meet bilingual enactment and publication of statutes → violated provincial constitution ○ Large scale invalidity would create chaos and undermine rule of law → suspended for minimum period of time required for translation and re-enactment in both French and English Carter v Canada (AG) ● Extended suspension on declaration of invalidity → qualified applicants could be exempted (24(1)) during that period Section 24(1) ● Declarations, structural injunctions (complex supervisory orders--extensive in US), damages Little Sisters Book and Art Emporium v Canada ● Challenge to 15 and 2(b) that obscenity prohibitions on imports targeted queer bookstores and was so cumbersome and procedurally defective that it couldn’t respect Charter → law held to be valid (issues from application, not law) ○ No reverse onus on importers → Crown or other alleging party must establish that goods are obscene ○ Rights infringed due to targeting despite lack of evidence, resulting in delays, costs, and other losses ○ Insufficient number of officials carrying out review, inadequate training, lack of proper guides, no internal deadlines, DOJ advice not implemented into guides and manuals, no timely notice, no equal benefit of fair and expeditious treatment of imported goods without discrimination based on sexual orientation ● Impractical to fashion structured 24(1) remedy → concerns addressed but inadequate evidence of sufficiency ○ Can’t have permanent injunction (would be tantamount to s 52 inoperability) and temporary injunction is unrealistic (“until such time… as there is no risk”) → declaratory relief ● Dissent: no safeguards in legislation and Customs asking for “trust” and approach would mean that every unconstitutional law only requires declaratory remedy → should instead declare invalid, suspended for 18 months ○ Declarations often appropriate, preferable to injunctions (more flexible, less supervision, more deferential) but can be vague, insufficiently specific, unable to monitor compliance, and require subsequent litigation ○ Striking down would vindicate rights, prevent future and systematic violations, and be more enforceable (would have to amass large record to re-litigate if unhappy with government’s choice) ○ Insufficient to hope that Customs will remedy despite long history of excessive censorship Canada (Prime Minister) v Khadr ● Reversed mandatory order that Canada request Khadr’s repatriation → instead, declaratory remedy ○ Would give too little weight to executive’s constitutional responsibility on foreign affairs ○ Incomplete record → inappropriate to give direction as to necessary diplomatic steps ● Issued diplomatic note requesting that the US not use fruits of Canadian interrogation → declined to honour ● Subsequent litigation: still no effective remedy and Canada breached duty of procedural fairness and doctrine of fair expectations by not consulting Khadr prior to issuing diplomatic note Canada (AG) v PHS Community Services ● General preference for declaratory over mandatory orders → but m​ andamus​ for health minister to grant exemption because declaration would be inadequate given serious infringement and grave consequences Doucet-Boudreau v Nova Scotia (Minister of Education) ● Trial judge retained jurisdiction and required government to report back on progress in making minority language schools available after issuing declaration that francophones’ s 23 minority language educational rights were violated ● 24(1) remedies not limited by statutes and common law (but will be relevant in determining appropriate/just remedy) ● “Appropriate and just in the circumstances”: discretion based on perception of right and infringement, facts, application of relevant legal principles → wide discretion based on wording, not to be preempted by appellate courts

22 ○ Meaningfully vindicate rights and freedom of claimants: account for nature of violated right, claimant’s situation, claimant’s experience, circumstances of infringement or denial of right ○ Legitimate within constitutional framework: respect separation of powers (but not a bright line) ○ Judicial remedy that invokes function and powers of a court ○ Should also be fair to other party (no substantial and unrelated hardships) ○ Part of a constitutional scheme for vindication of fundamental rights: allowed to evolve, be flexible, responsive ● Application: effective and meaningful (preferred to novel litigation, issue wasn’t government’s misunderstanding of right so repeated declarations ineffective, and high rate of assimilation and history of denial of rights) ○ Courts can take action to enforce (e.g. contempt proceedings, garnishments, writs, etc) ○ Judicial because courts can have continuing role (e.g. equitable remedies throughout litigation, supervising bankruptcy and receivership matters, trusts and estates supervision, family law cases) ○ Fair means: not overly vague (but could be better--still, original remedy); doesn’t need to be single best remedy ● Dissent: court orders must be detailed to give parties notice of expectations, can’t cross into administrative oversight ○ No clear notice of obligations, nature of reports, purpose of reporting hearings, c​ ontra​ separation of powers ○ Violations of injunctions can result in civil or criminal penalties → need clear obligations ○ Uncertain if needed oral or written reports, detail, supporting documents, affidavits, cross-examination; limited utility of subsequent hearings (and is ​political)​ and amounted to violations of procedural fairness ○ Breached both separation of powers (fundamental role in enforcing constitutional rights so should be wary of going beyond scope) and ​functus officio​ doctrine → assume good faith in compliance and need for finality ○ S 24 not to be read so broadly that it courts and tribunals have power they were never meant to exercise Thibodeau v Air Canada ● Need special care for structural orders due to problems of insufficient clarity and ongoing judicial supervision Vancouver (City) v Ward ● Charter rights violated with detention, strip search, and seizure without cause → damages where appropriate and just ○ VPD received information that unknown individual intended to throw a pie at PM and Ward mistakenly identified as would be pie-thrower → detained, partial strip search (not touched), car impounded ● Broad language of 24(1), improper to reduce that discretion, damages not precluded ○ Appropriate and just: meaningful vindication, constitutionally legitimate, judicial remedy, fair to other party ○ Damages meet test: meaningful vindication, well-recognized means, judicial power, fair to breaching party ● Distinct from private law damages → constitutional damages (public law action directly against the state; can have separate actions against individual actors); underlying policy considerations for private law damages may be relevant ● Test: (1) establish Charter breach, (2) functional justification of damages (must further Charter’s general objects), (3) countervailing factors (e.g. alternative remedies and concern for good governance), (4) quantum ○ Three interrelated functions: compensation, vindication of Charter rights, deterrence--also affects quantum ○ If other remedies meet three functions, further damages would be unnecessary (e.g. private law damages, declaratory relief, legislation permitting proceedings against Crown; can’t have double recovery) ■ Don’t need to exhaust all other remedies--for state to show that other remedies are sufficient ○ Good governance: deterring breaches promotes good governance--but may need minimum gravity/threshold ■ Immunity from damages arising from legislative and policy-making functions ○ Quantum: often based on compensation (but not always), including pecuniary and non-pecuniary ■ If pecuniary, ​restitutio in integrum;​ pain and suffering compensable; consider seriousness of breach ■ Large awards and diversion of public funds may be inappropriate/unjust from public perspective ■ Compensation: Charter breach is independent wrong but shouldn’t duplicate private law damages ● Application: breach made out, serious harm deserving of compensation and serious violation in strip search without cause (non-serious, no weapons, no risk of harm), no sufficient alternative remedies (e.g. private law, declaration) ○ Humiliation: brief and not extremely disrespectful → not substantial damages (and car seizure is declaration)

23 Mackin v New Brunswick (Minister of Finance) ● If harm due to legislation, damages only if state acted negligently, in bad faith, or in abusing its powers 2(b): Freedom of Expression Purpose Roach and Schneiderman, “Freedom of Expression in Canada” ● UK common law favourable to free speech but rule of law (restraints on liberty require prohibition and prosecution) resulted in liberty of discussion in practice → Constitution “similar in principle” to UK ● But still significant limits: ​Official Secrets Act​, criminalization of sedition, false news, scandalizing the courts, surveillance, ​War Measures Act​ → freedom of expression poorly anchored in Canadian constitutional law R v Keegstra ● McLachlin (dissent): various instrumental and intrinsic justifications for freedom of expression ○ Promoting free flow of ideas essential to political democracy and functioning institutions → political process ■ Corollary: only political speech is worthy of protection but then that protection is absolute ○ Essential precondition to search for truth: promotes marketplace of ideas where end result is truth ■ No guarantee that it actually leads to truth but value in marketplace of ideas and non-verifiable ideas ○ Self-realization: everyone has the right to form their own opinions and beliefs, and to express them ■ On its own, too broad and doesn’t answer why other self-fulfilling activities aren’t protected Moon, “The Constitutional Protection of Freedom of Expression” ● Not just protecting individual liberty from state interference but protecting freedom to communicate with others ● Fundamentally social activity that allows for both agency and identity formation, but also harm ● Value is social nature of individuals and constitutive nature of public discourse → not intrinsic/instrumental ● Also not just binary of listener’s right to hear and judge for themself and speaker’s right to self-expression Commercial Expression Irwin Toy Ltd v Quebec (AG) ● Challenge to Quebec’s C​ onsumer Protection Act ​ that banned commercial advertising directed at people under 13 ○ Nature and intended purpose of advertised goods, manner of presentation, time and place it is shown ○ Exemptions: children’s magazine and announcements in children’s programming or shows, subject to content restrictions (e.g. prohibiting use of known person/character to promote goods and services) ● First step: was π’s activity within the sphere of conduct protected by freedom of expression? ○ Activity is expressive if it attempts to convey a meaning → form and content requirement ○ Content-neutral: protects all expression regardless of how unpopular, distasteful, contrary to mainstream ■ Can’t exclude activity on the basis of content or meaning being conveyed ■ Some purely physical activities that don’t have expressive content (e.g. parking a car) → π would have to show that it was performed to convey a meaning to bring it into protected sphere ○ Form: not neutral, can be varied but excludes violent expression (K​ hawaja​: also excludes threats of violence) ■ Montreal (City)​: violence not protected because it is contrary to underlying values of 2(b) ● Second step: was the purpose or effect of the government action to restrict freedom of expression? ○ Purpose: extremes of everything being expressive (objective) or government purpose was addressing some real social need (subjective) → if restricting content of expression by singling out particular meaning not to be conveyed or if restricting form of expression to control access to meaning, will be to limit expression ■ If controlling only physical consequences of human activity, purpose is not to control expression ■ Restrictions on publication and regulation of time, place, manner of content vs regulation of time, place, manner regardless of content → regulating expression vs preventing physical intrusions ■ E.g. rule against pamphlets subjectively for littering vs restriction on littering ○ Effects: π to demonstrate restriction on expression despite lack of government purpose (case-by-case basis)

24 ■ Insufficient to show expressive element of restricted action → must show that attempt to convey meaning reflected underlying principles (truth, participation in community, self-fulfillment) ● Pressing and substantial objective: protecting group that is particularly vulnerable to seduction and manipulation of advertising → media manipulation, inability to differentiate between reality and fiction, effects on parental authority ○ Young children can’t distinguish fact from fiction so TV advertising directed to them is p​ er se​ manipulative → can extend conclusion to other media and to older children (need ​reasonable​, not o​ nly​ the most vulnerable) ○ Legislature mediating between competing claims of different groups → reasonable assessment, weighing conflicting scientific evidence, allocating scarce resources so not for judiciary to second-guess ○ Dissent: no rational connection because children live in a world of fiction and are fine after growing up ● Minimal impairment: competing groups so must strike balance without absolute certainty → representative function ○ Mediating between different groups instead of being singular antagonist of the individual so less certainty on what is the “least drastic means” (vs proposed alternative of self-regulation) → but similar to other jurisdictions and legislative action to protect vulnerable groups isn’t always restricted to least drastic means ○ Dissent: total ban with arbitrary cut-off; history of restricting of expression allegedly to protect the vulnerable ○ Factors affecting standard of proof (B​ ryan​): nature of harm and inability to measure it, vulnerability of protected group, subjective fears and apprehension of harm, nature of infringed activity Ford v Quebec (AG) ● Commercial expression: intrinsically valuable as expression, protects listeners, and enables individuals to make informed economic choices (important aspect of individual self-fulfillment and personal autonomy) Rocket v Royal College of Dental Surgeons ● Stringent restrictions on dentists’ advertising → commercial nature is relevant at s 1 because motive is profit rather than underlying values and consumers are highly vulnerable to unregulated advertising (but also, informed choices) ● Not justified under s 1: overbroad despite needing to protect public and maintain professionalism because public has an interests in obtaining information such as office hours, languages spoken, objective relevant facts → all restricted ● Profit motive of commercial expression makes it easier to justify infringement (but overturned in ​RJR​) RJR MacDonald Inc v Canada (AG) ● Tobacco Products Control Act p​ rohibited advertising and promotion of tobacco products and requiring unattributed health warning on dangers of smoking; government refused to disclose policy documents on alternatives ● Government conceded 2(b) violation (but not on health warning); RJR conceded pressing and substantial objective ● Dissent​: “reasonable” = flexible s 1 test → evidentiary requirements vary on nature of legislation and infringed right ○ Nature and scope of health problems relevant both to standard of justification and weighing evidence: growing recognition of health problems but widespread usage (especially among young and less educated) ■ Significant gap between understanding of health effects and root causes of tobacco consumption → institutional problem where strict proportionality would be an impossible onus on Parliament ○ Irwin Toy ​ distinction of singular antagonist vs mediating interests reflective of courts being specialists in protecting liberty and interpreting legislation but not in policy-making (higher deference to social legislation) ■ Applies here: policy dilemma of detrimental health effects but unrealistic to prohibit → less drastic, more incremental approach to balance interests of smokers, non-smokers, and manufacturers ○ Harm and profit motive → far from core values of 2(b) with sole purpose of informing and promoting use ○ Rational connection: not civil standard → just reasonable basis for believing rational connection exists ■ Common sense that wouldn’t be spending $75M on advertising if not increasing consumption → rejected argument that it’s to maintain brand loyalty and even so, induces smokers to not quit ■ Internal marketing documents: concern about shrinking market and advertising is necessary, reassure current smokers and advertise to young smokers, associate with glamour, affluence, vitality, etc ○ Minimal impairment: argued partial ban against lifestyle advertising instead of blanket ban → context of selling harmful products so banning only advertising is unintrusive (only targets use of social psychology etc)

25 ■ Blanket ban justified through 20-year public policy process with extensive consultation and studies ○ Proportionality: deleterious effects not outweighed by legislative objective; health message (violates right to silence) is unattributed but unlikely to be perceived as endorsement, common to see labels due to regulation ■ Distinction between unattributed warning and warning attributed directly to manufacturers ■ Even if infringement, justified under s 1 due to context of corporations selling harmful products ● Majority​: unattributed warning (especially combine with ban on packaging) violates 2(b) ○ Need to be sensitive to social and political context but still need reasoned demonstration of good to pass s 1 ○ Context doesn’t reduce state’s obligation to meet its burden and not always a bright line between singular antagonist and mediating interests cases (here, ​is ​ a criminal law) ○ Standard of proof is n​ ot​ reasonable basis for rational connection → always civil standard at each step of test ○ Must not overstate objective → ​is objective of the infringing measure (​ here, to prevent people from being persuaded by advertising and promotion to use tobacco products and discourage through warning) ■ Limited efficacy since 65% of magazines are imported and still have advertisements ○ Rational connection: if scientific evidence not possible, may find causal connection based on reason and logic ■ Sufficient evidence for ban and warnings but not for banning use of trademark on other products ○ Minimal impairment: carefully tailor law so that impairment of rights is no more than necessary (must be within range of reasonable alternatives) → here, complete ban including of informational advertising ■ Blanket ban more difficult to justify, only justifiable if demonstrable that nothing less would work ■ No indication that informational or brand preference advertising would increase consumption ■ Alternatives in other jurisdictions (including recommendations), no argument, no evidence/studies ■ Difficult social issues with high stakes doesn’t give Parliament right to unilaterally determine limits ■ Shouldn’t undervalue commercial speech → deprives of price, quality, health risks of brands ■ Unattributed health warning: failed to demonstrate that attributed warning wouldn’t suffice Canada (AG) v JTI MacDonald Corp ● Banned advertising except for information and brand preference directed at adult readership, with attributed warnings ○ Genuine attempt by Parliament to control advertising and promotion but address concerns in R​ JR​ (also provided detailed and copious evidence justifying limit) ● New scientific insights that tobacco is irrefutably accepted as highly addictive and personally and socially costly ○ International context also changed: similar and more restrictive anti-tobacco measures around the world ○ Recognition of harms of secondhand smoke and banning in public places, recovery of healthcare costs ● Burden of proof doesn’t change despite new evidentiary framework or legislation coming out of SCC decision Ramsden v Peterborough (City) ● Offended bylaw by putting posters about his upcoming band performances on hydro poles ● Total ban on postering on public property isn’t minimally impairing or proportionate (legitimate goals but completely denies access to a historically and politically significant form of expression given cost and marginality) R v Guignard ● Owned property and insurance policy covered risks but loss occurred and significant delays in indemnity ○ Placed a sign on another of his buildings → ordered to remove sign within 24 hours → didn’t → charged ● Commercial enterprises have right to inform and promote through advertising (usually positive but can be negative) ○ Consumers also have freedom of expression through counter-advertising (critique, negative comments), subject to defamation limits, and not limited to private communications ○ Not just a reaction to commercial expression or derived from it--social and economic expression for citizens ● Bylaw directly infringes freedom of expression, especially for people without adequate financial resources ○ Declared invalid, suspended for six months due to importance of zoning, risk of acquired rights, legal vacuum

26 Hate Speech ● Restricted by C​ ode​ promotion of genocide, incitement of hatred against identifiable group if it’s likely to lead to breach of the peace, wilful promotion of hatred against identifiable group; ​Customs Tariff​; human rights codes R v Keegstra ● High school teacher unlawfully promoting hatred by attributing evil qualities to Jews (in contrast to Christians) ● Context: post-WWII and Cohen Report need to prevent hate dissemination without unduly infringing 2(b) ● Majority (Dickson​): wilfully promoting hatred → conveys meaning and is intended to do so ○ Type of meaning is irrelevant under I​ rwin Toy ​ test and prohibition is on words → purpose met ○ Rejected arguments that hate speech is non-protected violent expression or that expression should be interpreted in line with international commitments so not protecting expression undermining equality, etc ○ “Free and democratic society” values and principles must be taken into account in s 1 balancing ○ Legislative objective: Cohen Report evidence (targeted violence, Canada as a major source of hate propaganda, etc.), international human rights obligations including criminalization, Charter equality and multiculturalism → harm to targeted individuals and society at large → important objective made out ○ 2(b) is content neutral (high value on expression in the abstract) but s 1 analysis can’t be → contrary to free expression and free and democratic society values → prohibited expression not close to underlying values ■ Can’t be certain of truth but untrue expression has limited value in search for truth ■ Self-expression and autonomy: infringed by also derives from group identification ■ Political process: includes strong and hateful language, and propaganda is inherently political but undermines democratic values by denying respect and dignity due to racial/religious characteristics ○ Rational connection: suppression of propaganda reduces harm done to visibly identifiable individuals ■ Media may promote cause and make martyrs--but law communicates severe reprobation ■ Suppression may be result in believing there’s truth--but it also might not make it more attractive (pornography and defamation are restricted but that doesn’t dignify them) ■ Didn’t work in Nazi Germany--but can be one part of preventing the spread of racism ○ Minimal impairment: overbreadth in capturing expression that isn’t hate propaganda due to vagueness--but private conversations excluded, demanding ​mens rea ​ (wilful), defences available, police action ≠ law ■ Can’t prove actual consequent hatred--but doesn’t attend to psychological trauma, impossible to prove causation but criminal law can be used to prevent ​risk ​ of serious harms ■ Vague meaning of hatred--dictionary definition of extreme vilification and detestation ○ Proportionality: non-criminal responses, information, education--but one part of many avenues and s 1 shouldn’t force government to rely only on least intrusive measure every time ■ Central concerns and in light of that objective, deleterious nature doesn’t outweigh benefits ● Minority (McLachlin)​: hate literature inflicting pain and indignity on individuals, and threatens social stability ○ Rational connection: furthers Parliament’s objective but may have chilling effect and uncertain if it is effective at curbing hate mongers (may promote their cause through media coverage and give them sympathy) ■ Assumes that listeners will believe hate if they are exposed to it--in that case, may also believe that there is some truth because government is trying to suppress it ■ Ineffective in pre-Hitler Germany and allowed Nazis to propagate their message ■ If there’s a rational connection, it’s tenuous--certainly not strong and evident ○ Minimal impairment: overbroad--many definitions of hatred (diverse emotions captured), is subjective so must be proved by inference (more likely to draw if unpopular), wilful promotion might capture people who don’t believe it but not people who actually believe their hatred ■ Poor track record: new provision but questionable actions by authorities (Customs)--narrowed through prosecutorial discretion but initially wide and grounds chilling effect concern for novelists, scientists, political debate on immigration, education language rights, foreign ownership, trade

27 ■ Criminalization: too severe with stigma and liberty (may deter ordinary citizen but not hatemonger), other remedies more appropriate and effective (and requiring less precision) ○ Proportionality: serious infringement from society’s perspective--strikes content and viewpoint (not just form or tone) across diverse domains (artistic, social, political) when public → core values may be limited ■ Worthwhile objective but unsure if there are actual benefits R v Zundel ● AG reluctant to grant consent to prosecution of prolific Holocaust denier → private information sworn before JP ● Unanimous agreement that deliberate publication of knowingly false statements is protected ● Difficult to determine whether statements are true--but false news provision not a justifiable and reasonable limit because provision was originally for a different purpose (protecting powerful), overbroad, disproportionate ○ Allows for prosecution of anything that doesn’t conform with accepted truths → prosecute unpopular ideas ○ Dissent: prohibit speech that is contrary to Charter values, tenuous connection to values, criminal safeguards Canada (Human Rights Commission) v Taylor ● Discriminatory to use telephone to repeatedly communicate messages likely to expose a person or persons to hatred or contempt because they are identifiable on the basis of a prohibited ground ● Prerecorded messages about Jewish conspiracy to control Canadian society → cease and desist order → contempt and imprisonment → kept going after release → another order of committal ● Provision breached 2(b) but saved under 1 because hatred and contempt aren’t always synonymous → but fair, large, and liberal interpretation and broader restrictions than criminal law permissible due to conciliatory purpose ○ No intent requirement permissible given widespread nature of systemic discrimination, intent requirement would be contrary to effects-based remediation of human rights codes, purpose is to compensate and protect victim rather than stigmatize or punish discriminatory person ● Dissent (McLachlin): breadth consistent with purpose but captures communication that shouldn’t be prohibited Moon, “Report to the Canadian Human Rights Commission Concerning Section 13” ● Should narrow government censorship to extreme expression that threatens, advocates, or justifies violence against an identifiable group → significant risks to failure to ban extreme or radical edge of discriminatory expression ○ Narrow focus on violence doesn’t fit within human rights law taking expansive view of discrimination ● Can’t censor less extreme forms because they are so commonplace--but must be addressed and confronted Ross v New Brunswick School District ● Prohibition of creating a negative environment challenged → anti-Semitic views outside classroom found to poison environment within the classroom → prohibited from publishing or distributing anti-Semitic material to keep job ● Upheld removal from classroom due to young children’s vulnerability but not permanent ban if no longer teaching Saskatchewan (Human Rights Commission) v Whatcott ● Homophobic flyers distributed and HRT found promotion of hatred based on sexual orientation, upheld as reasonable restriction on expression and religion → barred from distributing, compensation ordered ● Defining hatred: whether a reasonable person, aware of the context and circumstances, would view it as exposing the protected group to hatred--can be through blame, equation to reviled groups, dehumanization ● Severed “ridicules, belittles, or otherwise affronts the dignity of” → only “hatred” which is “only extreme and egregious examples of delegitimizing expression” → no longer overbroad ○ Prevents chilling of debate and captures only expression that inspires hatred (instead of just being harmful) ● Violent expression and expression threatening violence is excluded--but otherwise included; hate speech is far from core values of 2(b) → ​Code ​ adequately protects political discourse and only limits extreme/marginal expression ● Sincere belief that religion requires him to proselytize homosexuals → justifiable (after severance) ● HRT standard of review is reasonableness: must be assessed in context and as a whole to determine overall impact or effect → but not unreasonable to isolate (if one part found to contravene C​ ode,​ entire publication precluded) ○ Genuine comments on sexual activity unlikely to fall within “hate” → but directed at identifiable group

28 ○ Hallmarks of hatred found: reasonable person would find them inferior, untrustworthy, and attempting to proselytizing and converting children; equated to diseased, sex addicts, pedophiles, predators ○ But banning other flyers was unreasonable: reasonable person wouldn’t find vilification or detestation → offensive but presented as own interpretation and short of delegitimizing and promoting hatred; Biblical references could reasonably also be interpreted as promoting execution of those who harm Christians 2(a): Freedom of Conscience and Religion ● Started with ensuring stability of Quebec colony; regional diversity ensured through federalism and education (s 93) ○ Exemptions to encourage settlement--alongside persecution of Jehovah’s Witnesses and residential schools ● More principled approach to religious freedom with S​ aumur​ striking down bylaw against distribution of literature without consent (targeted Jehovah’s Witnesses) → restricting religion u​ ltra vires​ provincial government ○ Chaput:​ no state religion and all denominations enjoying same freedom of speech and thought ● Stems from 16th and 17th century religious wars → Lockean religious tolerance because individuals’ spiritual truths ○ State should be concerned only with civil interests of life, liberty, health, property; individuals responsible for own spiritual welfare which can’t be delegated → inconsistent with state’s coercive powers ● Charter: originally liberty to hold and live in accordance with fundamental beliefs without state interference → two dimensions of freedom to religion (without interference) and freedom from religion (via state compulsion) ○ Now also requirement of state neutrality: treat all religions equally and not supporting religion at all ○ Also freedom of conscience--no longer intertwined with religious systems → collectively, protects all moral beliefs (but difficult to find jurisprudence other than state neutrality with non-believers also protected) ■ Exception: ​Maurice​ and secular vegetarianism in prison protected (total institution so not just a private matter); aided by ease of accommodation given previously religious vegetarian R v Big M Drug Mart ● Charged with unlawfully carrying out sale of goods on Sunday contrary to L​ ord’s Day Act ○ Validity of Sunday observance legislation previously through division of powers (federal competence) ○ Punishable on summary conviction for violation (but some enumerated exceptions) ● Two ways to characterize purpose of legislation: Christian institution vs uniform day of rest → clearly the former given origin in 1677, clear religious purpose of fourth commandment, 91(27) due to public order and morality ○ Rejects argument that constitutionality can be based on effects only → either one can invalidate a law; and vital to fully protect rights → enhances checks on government action, prevents need to prove effects, allows courts to dispose of clearly improper objects of law without inquiring into effects ● Purpose considered first, then effects if law has passed purpose test → clearly religious purpose in both 1677 and 1906 ○ Shifting purpose is impermissible: practical difficulties (encourages relitigation, invalidity, uncertainty) and contrary to fundamental notions of Parliamentary intention (based on drafters’ intentions at the time) ● Truly free society is one accommodating a wide variety of beliefs, tastes, pursuits, customs, codes of conduct; freedom founded on inherent dignity and inviolable rights → ​LDA ​binds everyone to Christian idea → coercive ○ “It takes religious values rooted in Christian morality and, using the force of the state, translates them into a positive law binding on believers and non-believers alike”; protects one religion but not others, contrary s 27 ● Purposive approach: generous rather than legalistic interpretation, meaning of a right based on purpose of guarantee ○ History: prevent religious oppression, prevent coerced beliefs and dishonoured god, democratic political tradition (citizens’ ability to make free and informed decisions is prerequisite for legitimate government) ○ Everyone has right to hold and manifest beliefs and opinions subject to not injuring neighbours or their rights ○ Religious rights as paradigmatic Charter rights → includes at minimum, freedom from government coercion ● Not a reasonable limit: convenience and necessity of universal day of rest → but criminal sanctions or would be 92(13) Syndicat Northcrest v Amselem ● Setting up of succah for nine days on their own co-owned property (Q​ uebec Charter​ case) → violated bylaws which prohibited decorations, alterations, constructions on balconies → requested permission the following year → denied

29 ○ Proposed accommodation of communal succah but rejected due to being contrary to personal religious beliefs and causing extreme hardship → set up own succahs → permanent injunction sought ● Defining religious freedom: must define religion (need outer definitions since only religious beliefs, convictions, and practices are guaranteed) → particular and comprehensive system of faith and worship, often controlling power ○ Freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment → emphasis is on personal choice ○ Not restricted to aspects of religious belief/conduct that objectively recognized by religious experts ○ Only need to show sincerity of belief, not the objective validity of them ● Freedom of religion: freedom to undertake practices and harbour beliefs having a nexus with religion, in which an individual demonstrates they sincerely believe or is sincerely undertaking as a function of spiritual faith ○ Protects religious or spiritual essence of action, not mandatory or perceived as mandatory nature → proving that beliefs are supported by faith would require courts to interfere with personal beliefs which 2(a) is against ○ Must inquire into sincerity of belief, which is only an honesty of belief; limit inquiries to ensuring that it is in good faith and not capricious, fictitious, or an artifice; consider credibility and consistency (but can evolve) ● Interference: must be more than trivial or insubstantial → not every action is an interference and 2(a) isn’t absolute ● Test: (1) sincere belief or practice having a nexus with religion, (2) non-trivial interference with ability to act in accord ● Application: trial and appellate erred in finding religion not triggered because rabbi said it wasn’t required ○ Incorrect to choose between competing authorities and limit to obligatory requirements of Judaism ○ Requiring only obligatory (subjective or objective) wouldn’t protect custom/non-mandatory practice ○ Either objectively required, subjectively required, or subjectively engenders a connection to object of faith ○ Erred in concluding insincerity of current belief due to previously celebrating Succot differently ○ Non-trivial interference: made out due to prohibiting substance of right, and distress (should be joyous) ○ Minimal intrusions into Syndicat’s rights given only 9/365 days, few succahs, and aesthetic appearance not justifying total ban; security concerns might be appropriate but succahs to be set up in non-threatening way ○ Even if could waive 2(a) rights, didn’t--wasn’t voluntary, explicit, or unconditional ● Dissent: narrower approach to scope → only protected if established religion and viewed as mandatory ○ Can privately believe things but must have nexus to protect practices since religion is inherently collective ○ Unnecessary to waive--Amselem knew what he needed, chose not to read contract, rejected accommodation Bouchard and Taylor, “Building the Future: A Time for Reconciliation” ● Accommodation due to intercultural harmonization rather than domination and assimilation ● Reasonable accommodation rather than equal treatment: reconciliation, adverse effects discrimination, ● Apparently neutral or universal norms actually reproduce implicit worldviews which can discriminate against others Multani v Commission scolaire Marguerite-Bourgeoys ● Orthodox Sikh student forbidden from wearing ​kirpan ​ (ceremonial dagger) → sincere belief conceded ● Duty to make reasonable accommodation adversely affected by policy/rule that is neutral on its face ○ Only extends to the point where it causes undue hardship to accommodating party ○ N.b. minimal impairment/accommodation also shaped by particular societal fabric: F​ ord v Quebec (AG) ● School policy is only reasonable safety since impossible to ban all safety risks; ​kirpan ​ is religious symbol rather than weapon so not inherently dangerous → distinguished from planes due to ongoing relationship/ability to monitor Alberta v Hutterian Brethren of Wilson Colony ● Traffic Safety Act ​ requiring all drivers to have a driver’s licence with a photo (subject to exemptions) → discretionary non-photo licence for religious objectors → replaced by universal photo licence with storage in databank ○ Contrary to second commandment and rejected accommodation measures that still required photograph ○ Communal, rural lifestyles threatened without driver’s licences vs minimizing identity theft ● Majority (McLachlin):​ Result of beliefs is choice between violating religious commitments or forgoing driver’s licences, and need some members to drive to do business and obtain necessary goods and services

30 ● Both individual and collective elements of freedom of religion: relevant for proportionality, but not a group right ● Conceded sincere belief but not non-trivial and substantial interference → but assumed by all courts that it is ● Deference for regulatory schemes on social and commercial interactions: complex schemes, overlapping and conflicting interests and legislative concerns → primary responsibility falls on elected government to make choices ○ Can’t give effect to all 2(a) claims given broad scope of guarantee--would undermine many regulations ● Pressing and substantial objective of maintaining system integrity to prevent identity theft (harmonization) ● Rational connection: each licence connected to an individual, and only one licence per individual → more effective ● Minimal impairment: reasonably tailored and no less harmful means → deference, range of reasonable alternatives ○ Least drastic means ​of achieving the legislative objective​ → ineffective, less drastic means not considered ○ Exemption wouldn’t stop someone from assuming the identity of the licence holder → compromises goal ○ Rejects argument of many people without licences so small quantitative impact → but goal isn’t to eliminate all identity theft since goal is only to reduce driver’s licence identity theft through one-to-one correspondence ○ S 1 analysis for s 52 remedy is proportionality whereas s 24 remedy is accommodation → conceptually distinct with broad, general application vs individual dynamic relationship shifting until undue hardship ● Proportionality: not redundant--only part that assesses the severity of impact on the claimants (vs law’s purpose) ○ Analyze when there are no less drastic means instead of reading down objective at minimal impairment ○ Three salutary effects: enhancing security of scheme, assisting roadside safety and identification, harmonizing licencing scheme with other jurisdictions → can’t quantify fraud but would harm system’s integrity ○ Don’t need actual proof of public good; only need reason and evidence suggesting salutary effects ○ Deleterious effects: some conflict is inevitable and important to consider both harm to claimants and multicultural society where state has authority to legislate for the general good ■ Can be state compulsion (B​ ig M​) or incidental effects with no real choice (M​ ultani​) ■ Here, incidental effects is in terms of money and inconvenience → can hire drivers or third parties, and driving is a privilege not a right; 2(a) guarantees freedom but not that there won’t be costs ● Dissent (Abella)​: minimal impairment → government explains why less intrusive, equally effective measure isn’t used ○ Analysis isn’t why measure will maximize objective but whether infringement is minimal; ​RJR ​ that blanket bans are only justifiable if government shows that ​only ​ full prohibition is effective to achieve goal ○ All government proposals require taking a photograph which is the offending act ● Proportionality: salutary effects are speculative since facial recognition isn’t foolproof, no evidence that exemptions harmed integrity of the existing system, significantly more Albertans not in database at all and no universal ID card ○ Significant harm: no meaningful choice between losing licence and taking photo → threatens autonomy ○ Characterization of driving as a privilege--contrary to E​ ldridge ​ and providing benefits non-discriminately ○ Roncarelli r​ ecognized that licenses have significant impact and must be exercised fairly and constitutionally ● Dissent (LeBel)​: majority’s reasons understate impact on communities and religious relationships ● Can’t sharply distinguish between minimal impairment and proportionality stages: minimal isn’t the most minimal and need to weigh purpose against infringement to determine if it’s within a range of reasonable alternatives ○ Reasonable alternatives includes ones where achievement of government objective is imperfect; immediate rejection of all alternatives that don’t fully achieve objective severely restricts judicial review ● Licence isn’t a privilege--everyone entitled to a licence once meeting conditions and qualifications (non-discretionary) ● Hypothetical objective, small number of exempted licences, and significant burden for very small population R v NS ● Right of witness in criminal trial to wear a niqab--conflicts of freedom of religion and right to fair trial ● Must be resolved on case-by-case basis: sincere religious belief, serious risk to fairness of trial (depends on credibility and whether evidence is contested), possibility of accommodation, salutary and deleterious effects of removal ○ Consider importance of religious practice, degree of state interference, who will see, discouraging reporting

31 Conflicts of Rights ● Section 293 Reference​: polygamy violates 2(a) but saved by s 1 due to harm to women, children, and monogamy ● Reference re Same-Sex Marriage:​ doesn’t violate 2(a), extending rights can’t violate others’ rights, conflict of laws doesn’t imply conflict with Charter, and 2(a) protects religious officials from being compelled to perform marriages ● Marriage Commissioners Reference​: allowing civil commissioners to refuse violates s 15 and not saved by s 1 ○ Only route to civil marriage and no way to ensure that there are sufficient willing commissioners ○ Protection of commissioners’ religious freedom is pressing and substantial objective but not minimally impairing or proportional → alternative of single entry point system ○ Accommodated interests aren’t even at heart of 2(a): not protecting freedom to believe but to act on those beliefs in the world at large, and can’t expect to shape voluntarily assumed public office ○ Also only trivial and insubstantial interference: not asking to engage or approve of homosexuality ● Brockie v OHRC:​ specious distinction between providing to queer customers but not furthering queer lifestyle ○ Violated 2(a) but saved by s 1 → wouldn’t have been saved if printing editorial content, not just letterhead ● College of Physicians and Surgeons of Ontario: conscientious objectors to medically assisted dying must still respect patient dignity, not impede access to services, communicate objections with sensitivity (personal, not clinical), provide information for all options for care, must effectively refer and not abandon 15: Equality Rights ● Four rights (before, under, protection, benefit) as shift away from limited understanding pre-Charter (e.g. B​ liss​) The Test Andrews v Law Society of British Columbia ● British PR bringing action for declaration that citizenship requirement to LSBC violated s 15 ● McIntyre (dissenting in result): s 15 not a general guarantee of equality → only concerned with application of law ○ Equality as elusive concept without precise definition: comparative concept but differential treatment under the law won’t always produce inequality and identical treatment can produce inequality (e.g. ​Big M​) ○ Infinite variety of personal characteristics, capacities, entitlements, merits → unattainable ideal ○ Formal equality (treat like alike and unalike to extent of unalikeness) doesn’t consider nature of the law ● Must consider law’s content, purpose, impact on those to whom it applies, and to those whom it excludes ○ Not every distinction will violate s 15 but laws must have differential treatment to govern effectively ○ Remedial in ensuring security in knowledge that everyone is recognized by the law as human beings and equally deserving of concern, respect, consideration but more specific goal than eliminating distinctions ● Discrimination: worst of denials of equality and especially repugnant when reinforced by law ○ Distinction (intentional or not) based on grounds relating to personal characteristics of individual or group, which has the effect of imposing burdens, obligations, or disadvantages not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to others ○ Discrimination if based on personal characteristics due to group association but not if own merit/capacities ● (1) Differential treatment, (2) based on enumerated or analogous grounds, (3) resulting in substantive discrimination ○ Justification, consideration of reasonableness, etc will be s 1 analysis → lower standard of “reasonable” ● Application: legislative distinction between citizens and non-citizens, even though non-citizens are qualified ○ Burden: undue delay due to three year wait for permanent residents to acquire citizenship ○ S 15 applies to all persons, citizens or not → permanent residents are discrete and insular minority within s 15 ● Wilson: non-citizens lacking political power and vulnerable to having rights be overlooked → analogous category ○ Retain pressing and substantial objective for s 1 analysis because already limited to discriminatory treatment ○ Inevitable distinctions but they shouldn’t reinforce disadvantage by denying rights freely given to others ● La Forest: citizenship status is also immutable or beyond the individual’s control, and is generally irrelevant Lavoie v Canada ● Preferential treatment for Canadians in federal public service jobs → reasonable limit on s 15

32 ○ Dissent: no rational connection, no evidence of increased naturalization rates or value of citizenship ● Objective: enhancing meaning of citizenship as a unifying symbol → deference and pressing objective (Bastarache) ● Paradox of finding 15(1) violation too easily resulting in diluted s 1 analysis to justify (Arbour) R v Turpin ● First attempt to define s 15’s purpose: must consider impugned legislation and larger social, political, legal context ● Finding of disadvantage will necessarily require finding disadvantage independent of particular legal distinction ● Purpose is remedying or preventing discrimination against socially, politically, legally disadvantaged groups 1995 Trilogy ● Miron v Trudel​:5-4 denial of accident benefits to unmarried couple violates s 15 and is not saved by s 1 ● Egan v Canada​: 5-4 denial of old age spousal allowance to same-sex couples did not violate Charter (souse defined as opposite sex living with at least one year; Egan lived with partner for 40 years), but recognized sexual orientation ● Thibaudeau v Canada:​ inclusion-deduction rules (can deduct spousal support from income, but must add to income if receiving) supposed to have benefits accrue to child but 98% of recipients were women ● Three approaches: violation of human dignity and freedom through stereotyping, fourth element of personal characteristic at issue being irrelevant to functional values of law, focus on impact not ground of discrimination Law v Canada (Minister of Employment and Immigration) ● CPP survivor's pension (monthly benefit to surviving spouse if over 45 but not until 65 if spouse is 35 at death) ● Law: 30 years old when husband died at 50 after contributing to CPP for 22 years → argued age discrimination ● No discrimination found through purposive reading and application of 15(1) ○ Purpose: prevent violations of human dignity and freedom through disadvantage, stereotyping, prejudice ○ S 15 violated if differential treatment reflects stereotypes resulting in devaluation but not if it doesn’t violate human dignity or freedom and also assists in ameliorating the position of the disadvantaged ○ Human dignity: feeling self-worth, self-respect, integrity, empowerment; harmed by unfair treatment and marginalization → not status or position in society but how one legitimate feels when confronted by law ● Comparative approach: start with claimant’s view on comparator group but not limited to this as ultimate issue is whether a reasonable person in the claimant’s position would feel that a law violates their human dignity 1. Formal distinction drawn due to personal characteristic or fail to take into account already disadvantaged position, resulting in substantively different treatment 2. On the basis of enumerated or analogous ground 3. Discriminate by imposing burden or withholding benefit in a way that is stereotypical or otherwise perpetuates view that individual is less capable, worthy of recognition/value/concern/respect/consideration 4. Must have conflict between purpose or effect of law and purpose (human dignity) of s 15 5. Can refine pleaded comparator group based on examination of subject-matter, effects, context 6. Contextual factors: subjective (claimant) and objective (reasonable person in claimant’s circumstances) 7. Non-exhaustive list of factors found in jurisprudence and analogy: ● Pre-existing disadvantage (historical disadvantage persuasive but not determinative) ● Non-correspondence between characteristics and actual need, capacity, circumstances ● Ameliorative purpose or effects on more disadvantaged person or group (weighs against finding s 15) ● Nature and scope of interest affected (severe and localized = more likely to be discriminatory) ● Onus is on claimant to establish infringement but don’t always have to adduce evidence to factors ● Application: enumerated ground (age) resulting in unequal treatment (delay or reduction in benefits) ○ Central question is whether unequal treatment violates human dignity and freedom through stereotyping ○ Adults under 45 historically not consistently and routinely discriminated like discrete and insular minorities ■ Argued false stereotyping of assuming youth are advantaged in ability to enter/re-enter workforce → vs accuracy of assumptions given statistical data, other legislation, and SCC decisions

33 ○ Purpose and function of CPP provisions is long-term, not immediate, needs: judicial notice taken of difficulty in finding and maintaining employment when growing older (and benefits once 65 or disabled) ■ Differential treatment of younger people but not that they are less capable or deserving given goal of long-term security, greater opportunity of youth → correspondence established, ameliorative goal Gosselin v Quebec (AG) ● Age discrimination with base amount of social assistance for those under 30 ⅓ of that payable to those over 30 ● No discrimination because no violation of human dignity due to incentivizing entering into labour force Canadian Foundation for Children, Youth, and the Law v Canada ● S 43 of the ​Criminal Code ​ justifying reasonable use of force by parents and teachers as a form of correction ● No s 15 violation found due to correspondence of age-based distinction and actual needs (discipline, intact families) ● Dissents: denies children the protection of the criminal law → turns children into second-class citizens but saved by 1; compounds pre-existing disadvantage with vulnerability, powerlessness, limited legal redress (not saved by s 1) R v Kapp ● Mainly non-aboriginal commercial fishers arguing violation of 15 due to communal fishing licence; excluded from fishery during 24 hours allocated to aboriginal fishery → charged with fishing at a prohibited time ● Aboriginal Fisheries Strategy to increase indigenous involvement in commercial fishery: respecting ​Sparrow ​ rights, increasing aboriginal management and economic benefits, minimizing disruption of non-aboriginal fisheries ● 15(1) to prevent discrimination and 15(2) to implement ameliorative programs → branches work together ○ 15(1) to prevent discrimination on enumerated/analogous grounds with effect of perpetuating disadvantage or prejudice, or imposing disadvantage on the basis of stereotyping; 15(2) to enable governments to proactively combat existing discrimination through affirmative measures ● Human dignity (​Law​) is essential value underlying s 15 but is abstract, subjective, and additional burden for claimants ○ Law​ factors based on A​ ndrews ​ disadvantage and stereotyping as primary indicators of discrimination Quebec (AG) v A ● 17-year-old living with parents and attending school and 32-year-old owner of lucrative business ● Financial support, repeated break ups, unmarried → separated after seven years ● Filed for custody with challenge to constitutionality of ​Civil Code​ denying de facto spouses rights to spousal support and property sharing → 5:4 valid (majority: no violation + violation but justifiable under s 1) ● Differential treatment on the basis of marital status (analogous ground per M​ iron v Trudel​) ● Abella (dissenting in result)​ : spouses have right to claim support, equal division of property, use of family home and household effects during separation → recognize and compensate for relationship roles and resulting vulnerability ○ De facto ​ spouses also have long-standing relationships, divide responsibilities, high degree of interdependence, and same disadvantages on dissolution for economically dependent spouse → but no statutory protections ○ Context: protective purpose of spousal support and property division, functional similarity of married and unmarried couples, historical disadvantage of unmarried spouses ■ No longer overt discriminatory attitudes but still benign/unconscious discriminatory conduct ● Kapp ​ “disadvantage by perpetuating prejudice or stereotyping” isn’t a new test → just indicia of discrimination ○ Prejudice: pejorative attitudes based on strongly held views about the appropriate capacities/limits of groups ○ Stereotyping: a disadvantaging attitude attributing characteristics to group members regardless of capacity ○ Additional element would focus on discriminatory attitude (impossible to prove) instead of impact ○ S 15 to prevent discriminatory conduct not underlying attitude or motive ● Flexible and contextual inquiry into whether distinction has effect of perpetuating arbitrary disadvantage ○ Emphasis on whether exclusion is well-motivated or reasonable redirects analysis from impact on claimant → would leave no room for s 1 and reduces s 15 to only intentional, irrational discrimination ● Corbiere​: analogous grounds aren’t context-dependent → can’t find that choice to not marry excludes unmarried spouses from s 15 protection when marital status entitles claimants to s 15 protection (“choice” is s 1 consideration)

34 ● Application: (1) identify distinction and determine if it’s based on enumerated/analogous ground → established ○ (2) consider whether distinction is discriminatory: clear economic disadvantage given protections are so fundamental that they override freedom of contract or choice and is historical disadvantage ○ Functional similarities of married and ​de facto ​ spouses: other jurisdictions, Quebec, SCC decisions ○ Range of need/vulnerability among ​de facto ​ spouses doesn’t defeat a claim of discrimination ○ No need to look for attitude of prejudice motivating or created by exclusion; changing attitudes irrelevant ● S 1: pressing and substantial objective of freedom of choice, rational connection to exclusion ○ Not minimally impairing: limited deference with total exclusions, lack of nuance, and opt-ins sufficient only for spouses with sufficient financial security, legal information, and intent → better to have opt out program ■ Every other province extending spousal support after minimum cohabitation and opt-outs ● Dissent​: not discriminatory due to no prejudice or stereotyping → just respecting autonomy and private relationships ● McLachlin:​ upheld under s 1 → promoting choice and autonomy within unique social context ○ State-mandated obligations only on spouses making conscious and active choice to accept obligations ○ Minimal impairment: other choices less effective at maximizing choice and autonomy ○ Proportionality: freedom of choice, autonomy, difficult social issues, federalism and subsidiarity Kahkewistahaw First Nation v Taypotat ● RCAP: education is a priority → KFN election code mandating Grade 12 education for chiefs and councillors ○ Taypotat: chief for most of previous 30 years → argued discrimination race, age, residence on reserve ● S 15 focus is d​ iscriminatory​ distinctions (effect of perpetuating arbitrary disadvantage) ○ Law fails to respond to actual capacities/needs and instead imposes burdens or denies benefit with effect of reinforcing, perpetuating, exacerbating their disadvantage ○ Show disproportionate effect at first stage and specific evidence of disadvantage at second stage ● Education requirements could have discriminatory impact → operate as “built-in headwinds for minority groups” ○ Here, no evidence about relationship between age, residency on a reserve, and education levels of KFN ○ Even if properly raised and argued, election code fosters on-reserve participation with quota ○ Statistical evidence only of Saskatchewan as a whole, Census as a whole, aggregate educational data → can be useful evidentiary tool but this case is about a particular election code in a particular community ● Revised argument to be discriminatory against older community members who live on a reserve → may have intuition but need more evidence than “web of instinct” even if not an onerous burden Adverse Effects ● Facially neutral law with differential impact on the basis of a prohibited ground → adverse effects discrimination ○ Easier to establish when disproportionate burden rather than statistical adverse effect (equal burdens on everyone but affected population is disproportionately members of disadvantaged groups) ● Symes v Canada​: not allowing deduction of childcare expenses as business expense isn’t discriminatory → failed to establish disproportionate impact on women (needed to show disproportionate p​ aying​ of childcare, not just act) ● Thibaudeau v Canada:​ rules practically penalized custodial parents who are 98% women ● Health Services and Support​: interference with collective bargaining rights of unions representing healthcare workers, over 90% of whom were women → no s 15 violation because based on work, not identity Eldridge v BC (AG) ● Three Deaf individuals bringing declaration that failure to provide public funding for sign language interpreters violated s 15 (Medical Services Commission with power to decide what is a benefit that is medically required) ● Enumerated ground: physical disability → history of exclusion, marginalization, paternalism ● Distinction based on personal characteristics that are irrelevant to healthcare delivery ● Two principles: s 15 available to facially neutral legislation, and discriminatory purpose/intention not required ● Adverse effects discrimination first addressed with ​Simpson-Sears ​ and mandatory Friday/Saturday availability discriminating against observers of Saturday Sabbath (special characteristic despite neutral and equal application)

35 ○ Especially relevant for disability: rarely singling out disabled people but often disparate impact ○ Avoiding discrimination: need to make distinctions to take into account actual personal characteristics ○ Exclusion from society due to construction of society based solely on inaccessible mainstream attributes ● Application: no distinction between imposing unequal burdens and denying equal benefits for adverse effects ○ Lower courts: interpretation is ancillary service which isn’t publicly funded → mischaracterizes practical reality of healthcare delivery requiring effective communication ○ Ineffective communication results in receiving inadequate level of medical care and need to pay extra (interpretation) to receive same quality of care (even though hearing patients don’t pay for communication) ○ Not an ancillary service when it is necessary for effective communication ○ Rejects argument that adverse effects only when benefit programs exacerbate disadvantage rather than being inaccessible in the first place → once providing benefit (public healthcare), must do so non-discriminately ○ Not justified under s 1: no reasonable basis that total denial of services is minimally impairing Vriend v Alberta ● Exclusion of sexual orientation is differential treatment: distinctions between homosexuals and other marginalized protected groups, and between homosexuals and heterosexuals (formal equality in that neither could complain) ○ But social reality of disproportionate discrimination against homosexuals → denies substantive equality Enumerated and Analogous Grounds ● Grounds requirement criticized for distorting/compartmentalizing experiences of discrimination, obscuring intersectionality and different experiences, and not protecting everyone ● Citizenship (​Andrews)​ , sexual orientation (E​ gan​), marital status (​Miron​), aboriginality-residence (C​ orbiere)​ ● Immutability and lacking political power (​Andrews)​ ; deeply personal, unchangeable or only at a high cost, discrimination, violence, harassment, stigmatization (E​ gan​); essential dignity and worth, patterns of historical disadvantage and prejudice, limited control (​Miron)​ ○ Miron​: rejects argument that marital status can’t be a ground of discrimination because marriage is a “good” institution → but issue is not ground; issue is discrimination based on ground ● Not employment status (​Workers’ Compensation Act Reference; Health Services and Support; Dunmore)​ ○ Dunmore​ obiter: like off-reserve aboriginal band members, can only change occupational status at great cost if at all given relative status, limited mobility, low levels of skill and education ● Also not province/municipality of residence (​Turpin)​ , charged with universal jurisdiction crimes outside Canada (​Finta)​ , persons bringing a claim against the Crown (​Rudolph Wolff)​ , marijuana users (​Malmo-Levine)​ , poverty ○ Tanudjaja​: housing policies not justiciable--homelessness might be analogous ground in a future case Pothier, “Connecting Grounds of Discrimination to Real People’s Real Experiences” ● Rejects L’Heureux-Dubé’s argument in ​Egan​ that s 15 should focus on impact rather than ground of discrimination because grounds provide necessary history and context to discrimination → political and social realities, not just legal ● Creation of “novel” analogous grounds: issue is novelty to law, not lived experiences ● Grounds serve as reminder of why discrimination is prohibited and ignoring them validates generalizations ○ Act as markers of power and demonstrates different experiences of discrimination Corbiere v Canada (Minister of Indian and Northern Affairs) ● Indian Act​ s 77(1) requiring band members to be ordinarily resident on reserve to vote in band elections ● McLachlin:​ s 15 targets denial of equal treatment on immutable or constructively immutable grounds ○ Discriminatory: (1) enumerated or analogous ground, (2) substantive discrimination ○ Enumerated grounds: legislative markers of suspect grounds associated with stereotypical, discriminatory decision making (not a conclusion on whether discrimination exists in a particular case) ○ Analogous grounds: identifies type of suspect decision making often leading to discrimination but doesn’t identify discrimination in a particular case → constant markers which don’t change from case to case ○ Not the ground that changes from case to case but the finding of discrimination

36 ○ Second and third stages are distinct: suspect distinctions (grounds) screen out irrelevant cases, and need to find both ground and substantive discrimination to ground s 15 claim ○ Criteria: stereotypical decisions on the basis of personal characteristic that is immutable, changeable only at unacceptable cost to personal identity, or that the government has no legitimate interest in changing ○ Residence still not an analogous ground, and aboriginality-residence can be an analogous ground even if it’s limited to a subset of population (may allow for embedded analogous grounds for intragroup discrimination) ● L’Heureux-Dubé​: purposive and contextual inquiry to find that Aboriginality-residence is analogous ground ○ Contextual factors: fundamental nature, immutable or constructively immutable, lacking political power or disadvantaged, inclusion in statutory human rights codes → none are necessary elements though ○ Grounds analysis must be flexible enough to adapt to stereotyping, prejudice, or denials of human dignity ○ Off-reserve status: choice (if available) is fundamental part of identity and personhood, historical experience of disadvantage and form discrete and insular minority, limited/high personal cost choice ● Distinction doesn’t correspond with personal characteristics in a way respectful of dignity and difference, based on stereotype that off-reserve members not interested in participating or cultural identity, and fundamental interests ● Not justified under s 1: rationally connected but not minimally impairing (complete ban) 15(2) Ameliorative Laws or Programs ● 15(2) previously a contextual factor (L​ aw)​ or confirming and supplementing 15(1) (L​ ovelace​) R v Kapp ● Where a program distinguishes on enumerated or analogous ground but object is ameliorating conditions of a disadvantaged group, 15’s guarantee of substantive equality is furthered and claim of discrimination must fail ● Ameliorative programs inevitably exclude individuals → not reverse discrimination or unconstitutional ● Purpose of 15(2): protect state efforts to develop and adopt ameliorative programs (no positive obligation to do so) ● Third approach (rather than interpretive aid and exemption approaches): government demonstrates that an impugned program meets 15(2) criteria so unnecessary to conduct 15(1) analysis → read together for substantive equality ○ 15(2) defines how 15(1) is read → claim based on 15(2) program as violation of 15(1) cannot stand ○ Avoids “saving” it as ameliorative and gives 15(2) independent force; if failing to establish 15(2), full 15(1) scrutiny on whether impact is discriminatory ● Test: not s 15 violation if (1) ameliorative/remedial purpose and (2) targets disadvantaged group on identified grounds ○ “Has as its object”: purpose or effect, and sole object or one of several objects ■ Goal not effect: courts can ensure genuine purpose, reflects language, prevent undue interference, difficult to ascertain efficacy of early programs, should give leeway to goal of promoting equality ■ Consider drafters’ statements, rational means (at least plausible) → was it rational for the state to conclude that the means chosen would contribute to that purpose? → minimum correlation ■ Does not need to be exclusive object but importance of object may determine scope of 15(2) protection → precludes rest of legislative scheme necessary to and serving purpose from 15(1) review ○ “Amelioration”: laws designed to restrict or punish behaviour wouldn’t qualify, and effects are irrelevant (but no​ plausible or predictable ameliorative effect may make the state’s purpose suspect) ○ “Disadvantaged”: vulnerability, prejudice, negative social characterization → target specific and identifiable disadvantaged group (contrast with broad societal legislation, e.g. social assistance) ■ Don’t need individual disadvantage as long as the group as a whole experiences discrimination ● Application: goal of promoting band self-sufficiency through special privileges → credible ameliorative purpose; long-term and immediate benefits of income and employment relate to social and economic disadvantage ● Bastarache (concurring​): s 25 (can’t read rights to abrogate or derogate from aboriginal and treaty rights) Lovelace v Ontario ● Agreement between Ontario government and First Nations on Rama’s commercial casino’s proceeds → purpose was to improve socioeconomic conditions with net revenues going to First Nations Fund

37 ● Claim that it discriminated against Metis and non-status Indians failed due to ameliorative purpose 7: Life, Liberty, and Security of the Person ● Originally uncertain whether s 7 would be procedural or substantive due process, or natural justice (right to impartial hearing if general law affects you in a distinctive or particular way) ● Alternative approaches to two-step, no freestanding right approach: two rights (freestanding, and no deprivation → Gosselin)​ , or government onus to show infringement in accordance with PFJ rather than claimant showing violation BC Motor Vehicle Reference ● S 94(2) absolute liability with fine and mandatory seven days’ imprisonment ● Arguments against broad interpretation of s 7 based on judicial legitimacy → but elected representatives’ choice to have judicial review when patriating Constitution ○ Substantive/procedural dichotomy: overly narrow, overlaps, bound up in American law (no ss 1, 33, or 52) ● S 7 meant to protect life, liberty, and security of the person; “principles of fundamental justice” as qualifier of right ○ Not synonymous with natural justice → would strip right of its content; would be narrower than ss 8-14 which aren’t just limited to procedural rights ○ Ss 8-14 are specific deprivations of s 7 right, so s 7 right (general concept) must be broader than ss 8-14 ● “Principles of fundamental justice”: basic tenets of legal system so inherent domain of judiciary ● Absolute liability offends principle of fundamental justice that the innocent should not be punished, not saved under s 1 (pressing objective to keep drivers off road and punish but not a reasonable limit given due diligence alternative) ● Basic structure: show that law affects life, liberty, or security of the person, and that this effect violates a PFJ ○ Must demonstrate causal connection between state action and effect on protected rights (sometimes complicated by other factors such as third parties, natural force, or personal choice): ​Bedford Interests Protected ● Life: preventing access to medical treatment (C​ haoulli)​ , death penalty (usually s 12), extradition to death penalty countries (usually liberty and security of the person → must seek assurances that death penalty won’t be imposed) ● Liberty: risk of imprisonment (M​ otor Vehicle Reference)​ so PFJs apply at every stage of criminal process, mental health detention (​PS​), immigration detention (C​ harkaoui​), n​ ot​ contract (​Prostitution Reference​) or lifestyle (M​ almo-Levine​) ○ Freedom to contract arising out of ​laissez-faire ​ American context and lifestyle choices (e.g. fatty foods, marijuana) not basic choices going to the core of what it means to enjoy individual dignity and independence ○ Heywood:​ liberty interest triggered when prohibited to visit public places ○ Godbout:​ includes decisions about where to establish one’s home (obiter) ● Security of the person: interferences with bodily integrity and severe state-imposed psychological stress (e.g. force) B(R) v Children’s Aid Society of Metropolitan Toronto ● Children’s aid society obtained wardship of child to consent to blood transfusion on child’s behalf ○ Jehovah’s Witness parents brought claims on ss 2(a) and 7 ● Liberty is not unconstrained freedom: always subject to numerous constraints for the common good ○ Not just freedom from physical restraint; also personal autonomy to live own life and make decisions of fundamental personal importance → difficult to draw line between interests and regulatory powers ● Parents’ liberty interests: right to nurture child, care for its development, make decisions for it in fundamental matters such as medical care → common law recognition that parents are in the best position to care for their children ○ Not a parental right tantamount to right of property in children since state is now actively involved with traditionally private sphere → results in protected sphere of parental decision-making ● State can intervene when necessary to safeguard child’s autonomy or health--but must be justified ○ Children benefit from Charter but are unable to assert them; assumption is that parents will exercise their freedom of choice in a way inoffensive to Charter even if contrary to children’s wishes and rights ○ State intervention only when parental conducts is below socially acceptable, public policy threshold ● Further balancing of parents’ and children’s rights in determining PFJ rather than defining scope of liberty interest

38 ● Application: deprived parents of right to decide which medical treatment should be administered to their infant but procedures of notice, hearing before a judge, applicant onus met principles of fundamental justice New Brunswick (Minister of Health and Community Services) v G(J) ● Indigent parents’ constitutional right to be provided with state-funded counsel when the state seeks a judicial order suspending parents’ custody of their children pursuant to child welfare legislation (barred from legal aid) ● Security of the person restricted to serious state-imposed psychological stress (not ordinary stresses and anxieties) ○ State action must have serious and profound effect on a person’s psychological integrity (based on reasonable sensibility); doesn’t need to be at the level of nervous shock or psychiatric illness ● Established with state removal of a child from parental custody: intrudes into private sphere, stigmatized as unfit parent, and parental status often fundamental to personal identity ○ Not every state interference with parent-child relationship engages right: not restricted when child is sentenced to jail, conscripted into the army, or negligently shot and killed by a police officer ○ Different quality of injury: not interfering with psychological integrity of parent q​ ua​ parent Blencoe v BC (Human Rights Commission) ● Human rights inquiry into sexual harassment allegations, delay, and freedom from stigma not covered by s 7 → prejudice is personal hardship but state didn’t interfere with ability to make essential life choices ○ Distinguished from abortion, raising own children, getting therapy without disclosure, suicide ● Also no security of the person violation: not state-imposed and not seriously exacerbated by delays ○ Stress and depression but not within scope of s 7; always some stress and stigma for proceedings (including regulatory and civil ones) → non-public, asked to provide his version of events, communication, etc. R v Morgentaler ● Indictable offence to take steps to cause an abortion (including causing own abortion) ○ Exception: accredited/approved hospital with therapeutic abortion committee certifying that the continuation of the pregnancy would endanger woman’s life or health (at least four doctors needed) ● Abortion clinic → every abortion performed weas violation because no accredited and no TAC ● Dickson​: human body protected from interference by others (e.g. medical treatment without consent is assault) ○ But exceptions: emergency circumstances, state interference within principles of fundamental justice ○ State interference with bodily integrity and serious state-imposed psychological stress breach security ○ Finding breach doesn’t end inquiry (only threshold): breach established because every pregnant woman is told that she cannot submit to a generally safe medical procedure that might be clearly beneficial ■ Threatened by removal of decision-making power (physical) and indecision of knowing an abortion will be granted (emotional); forcing to term is profound interference with bodily integrity ■ Sufficient to trigger PFJ review but further issues of decision-making process and delay ○ Principles of fundamental justice: substantial inconsistencies and obstacles that limit the hospitals performing abortion (only 20% and provinces can place further restrictions), inconsistent definitions of “health” ■ Basic tenet of legal system: defences shouldn’t be illusory or practically illusory ■ Geographic, emotional, and financial limitations to travel to other hospitals ■ Manifest unfairness of system → unavailable defence for ​prima facie ​ qualified women; women whom Parliament does not want to criminalize will either be criminalized or carry to term; disproportionate ● Beetz​: primary purpose of law is the protection of the fetus → violates security of the person in precluding someone from obtaining appropriate medical treatment when life or health is in danger ○ Choice is between following TAC procedure which creates additional risk or face criminal sanction ○ Delay due to statutory requirements: absence of TACs, doctor quotas, committee requirement itself → delays constitute intervention that result in additional danger to health (complications, miscarriage, trauma) ○ Principles of fundamental justice: not too imprecise but manifest unfairness due to administrative structure with unnecessary rules resulting in additional risk to health; only violated due to u​ nnecessary​ delay

39 ○ Defence recognizes that woman’s life or health takes precedence over state interest in protecting fetus and continuing pregnancy → not unreasonable to seek independent medical confirmation (but TAC not needed) ● Wilson:​ primary issue is whether women can be constitutionally compelled to carry a fetus to term against her will ○ Not just physical and psychological security of the person → liberty and right to decide for herself ○ Individuals are neither totally disconnected from society or fully subordinated to the collectivity → reflected in Charter with legitimate government control over wide range of activities, but limits on scope ○ Liberty inextricably tied to human dignity: religion, philosophy, association, expression, residence, occupation ■ State approval of fundamental personal decisions not required but respect and non-interference are ○ Abortion is protected decision: psychological, economic, social consequences; varied circumstances; social and ethical in addition to legal decision → distinctly women’s right to reproduce or not → infringed ○ Security of the person engaged through physical and psychological interference → but is also direct interference with her physical person through treatment as a passive means to an undesired end ○ Further violation of 2(a): endorses and enforces one conscientious view over another through criminal law ○ Not saved by s 1: not a reasonable limit since taking decision away from women at ​all ​ stages of pregnancy ● McIntyre (dissent)​: no s 7 right to abortion so no s 7 violation in denial of abortion ○ Clear public interest in the protection of the unborn and no general acceptance of abortion at will ○ Need more than bodily integrity and serious state-imposed psychological stress → need another infringement Principles of Fundamental Justice ● Arbitrariness, overbreadth, grossly disproportionate effect, non-punishment of innocent, non-illusory defences Malmo-Levine ● Three-step test to establish principle of fundamental justice: (1) legal principle, (2) significant societal consensus that it is fundamental to how the legal system ought fairly to operate, (3) sufficient precision to yield a manageable standard against which to measure deprivations → enhances legitimacy of judicial review, ensures non-subjectivity ● Harm principle (non-criminalization unless harmful to others) fails Canada (AG) v PHS Community Services Society ● Minister’s failure to extend Insite’s exemption from ​CDSA ​ or ​CDSA ​ itself violate s 7 rights ● Staff and clients guilty of possession but not trafficking without exemption but law not invalid due to exemptions ● Rejects Canada’s arguments that personal choice and not law causes death and diseases (contrary to trial findings of fact that addiction impairs control), moral argument of suffering consequences (constitutionally irrelevant), policy question that is non-justiciable (also irrelevant for infringement analysis) ● Minister’s discretion isn’t absolute → all exercises of discretion must conform to the Charter (claimant’s burden) ○ Rejected argument that no decision had been made → minister d​ ecided​ to reject application for exemption ○ Decision not in accordance with principles of fundamental justice: arbitrary and grossly disproportionate ○ Arbitrariness: first step is identifying law’s objectives → ​Malmo-Levine CDSA ​ for health and public safety ■ Second step: identify relationship between state interest and impugned law/action (prohibition on possession to take marijuana out of hands of users in M​ almo-Levine)​ ■ Findings of fact: prohibition hasn’t worked, reduced risk, no increased crime rates ■ Unsettled jurisprudence on arbitrariness: necessity, no relation/inconsistent → either way, arbitrary ○ Gross disproportionality: extreme state actions that are disproportionate to any legitimate government interest → insite saves lives, proven benefits, no negative impact → disproportionate to “uniform stance” ● No s 1 analysis argued and wouldn’t succeed → refusal of exemption not rationally connected to public health/safety Carter v Canada (AG) ● Crime to assist in suicide → prevents grievously and irremediably ill people to seek a physician’s assistance in dying ○ Two options: taking own life prematurely (often by violent or dangerous means) or severe and intolerable suffering until dying of natural causes → cruel choice that violates s 7 and is not saved by s 1 ○ Conflict between competent adult’s autonomy and dignity, and sanctity of life and protecting the vulnerable

40 ○ Find prohibition void when depriving competent adult of physician assistance in dying where (1) clear consent and (2) grievous and irremediable medical condition saucing intolerable suffering ● Changed legislative landscape: reports in favour of reform, other jurisdictions permitting assistance in dying ● Impetus: Taylor diagnosed with ALS, Carter and Johnson flew mother to Switzerland, Schoicet (willing physician) ● Not bound by ​Rodriguez:​ s​ tare decisis​ for certainty and incremental development but can reconsider settled rulings if (1) new legal issue and (2) changed circumstances/evidence that fundamentally shifts the parameters of the debate ○ Both conditions met: different conception of s 7 (now includes overbreadth and gross disproportionality) and Rodriguez ​ decided on widespread acceptance of ethical distinction between passive/active euthanasia, lack of halfway measure to protect vulnerable, substantial consensus on prohibition → all changed by evidence ● Right to life: deprived through premature suicide → engaged when law or state action imposes death or an increased risk of death on a person, either directly or indirectly; sanctity of life is not preservation of life at all costs ○ Quantitative, not qualitative of dying with dignity, autonomy, self-determination (liberty; security) ○ Does not require absolute prohibition on assistance in dying or that individuals can’t “waive” their right to live → would result in duty to live rather than right to life and problematize refusing/withdrawing treatment ● Liberty and security of the person: both protecting individual autonomy and dignity ○ Liberty: right to make fundamental personal choices free from state interference (B​ lencoe)​ ○ Security: personal autonomy involving control over bodily integrity free from state interference (​Rodriguez​) ○ Prohibition interferes with fundamentally important and personal medical decision-making, imposes psychological stress and pain and deprivation of control over bodily autonomy ● S 7 not guaranteeing non-interference but only that it will not do so in violation of principles of fundamental justice ○ Arbitrariness, overbreadth, and gross disproportionality all involve comparison with the object of the law ○ First step is identifying object of the law: protecting vulnerable from committing suicide at time of weakness ■ Rejects “preservation of life”: underlying social value and would state objective too broadly ○ Arbitrariness: no rational connection between the object of the law and the limit it imposes, incapable of fulfilling its objectives, exacts a constitutional price on rights without furthering public good objective ■ Established: total ban clearly helps protect vulnerable from ending their lives when weak ○ Overbreadth: denies rights of some individuals in a way that bears no relation to the object (i.e. generally supports the object of the law but goes too far) → found overbroad because not everyone is vulnerable ■ Not concerned with competing social interests or ancillary benefits--just the individual claimant ■ Analogous to B​ edford​: inability to identify vulnerable/exploitative is to be addressed under s 1 ● S 1: difficult to justify a law that is contrary to principles of fundamental justice and thus inherently flawed ○ May be able to justify under public good and competing social interests (which aren’t considered at s 7, which looks only at rights claimants) → pressing and substantial objective conceded ○ Proportionality: reasonable, not perfect; high deference for social problems and complex regulatory responses → social policy, competing values, etc but blanket ban: high but reduced deference ○ Rational connection: risky activity so prohibition is rational way to curtail risks ○ Minimal impairment: reasonable tailoring, whether less harmful means are available, government onus to show absence of less drastic means of achieving the legislative goal in real and substantial manner ■ Absolute ban not necessary because physicians can reliably assess competence, voluntariness, coercion, undue influence, ambivalence → informed consent in other medical decision-making ■ Physicians to ensure proper information on diagnosis, prognosis, available care options ■ No evidence from other jurisdictions of vulnerable (elderly, disabled) and unconscious bias ■ Rejects argument that regulatory regime is too risky and speculative so blanket ban → reverses onus ■ Anecdotes, automatic deference, and slippery slope don’t constitute evidence and proof at s 1 ● Remedy: suspended declaration of invalidity, no constitutional exemptions, 2(a) for physicians still available

41 ○ Invalid only for competent adults who clearly consent and has grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of the condition Gosselin v Quebec (AG) ● Social assistance scheme paying one-third of money payable to those over 30 to those under 30, with possibility of increasing to base rate by participating in workfare and learnfare programs → class action after s 33 not renewed ● Majority​: rejects argument that security of the person includes sufficient social assistance to meet basic needs ○ Three elements to claim: legislation affects s 7 interest, inadequate benefits constitutes deprivation, deprivation not in accordance with principles of fundamental justice ○ Unclear whether s 7 extends to rights not connected with administration of justice but even if it could encompass economic rights, no positive obligation to ensure that each person enjoys rights ○ Insufficient evidence: compensatory workfare provisions and no evidence of actual hardship ● Arbour (dissent)​ : advanced modern welfare state has positive moral obligation to protect life, liberty, security ○ No jurisprudence or language for rejecting positive claim for most basic positive protection ○ Judicial decisions have read out entire first half of s 7 (freestanding right) and support for positive state obligation from s 1 which recognizes that state must arbitrate between competing demands and rights ○ Textual, purposive, and contextual analysis supporting that s 7 rights must have positive dimension ○ Welfare connected to basic health (security) and survival (life) → underinclusiveness analysis ○ Underinclusion: (1) ground in Charter right/freedom, (2) proper evidentiary foundation that exclusion constitutes substantial interference with exercise/fulfillment of right, (3) state is actually accountable for any inability to exercise the right or freedom in question ○ Application: freestanding s 7 right violated through exclusion of statutory regime making it impossible to meet basic needs through any means whatsoever (issue isn’t exclusion from p​ articular​ statutory regime) ■ Evidence: no requirement to exhaust all other avenues (e.g. help from private actors), need only show that government “substantially impeded” enjoyment of rights → $170/month (impossible to pay rent), 89% of young adults unable to increase benefits to base amount, severely compromises health, unable to pay for other basic necessities after rent, couldn’t job hunt ■ Physical (malnourishment, diseases, chronic health problems) and psychological (50% of homeless youth had attempted suicide) → overwhelming evidence of interference with security and life ■ Positive right: causation established through inaction (don’t need causal nexus); breach of positive duty of performance violates fundamental right but sustaining existing independent threats to right ■ Minimum state action established through provision of social assistance in the first place ● “Freedom from state interference with bodily of psychological integrity is of little consolation to those who, like the claimants in this case, are faced with a daily struggle to meet their most basic bodily and psychological needs” Chaoulli v Quebec (AG) ● Waiting times in public healthcare system and physician unsuccessful in having home-delivered medical activities recognized and obtaining licence to operate an independent private hospital ● Deschamps:​ Prohibition on private health insurance for publicly available services → consensus on necessity of public system but find non-necessity of prohibition to preserve integrity of the public system ○ Reality of significant privatization (either as subcontractors paid by the state or services unavailable by state) ○ People die as a result of long waitlists when they could get private sector treatment; limited resources and unlimited demand so waiting lists become rationing, real, and intentional → infringes life and security ○ Objective: healthcare of highest possible quality for all, regardless of ability to pay → pressing and substantial ■ Prohibition on private insurance means only the very wealthy can pay for entirely private services ○ Rational connection: preserve public plan through quasi-monopoly ○ Minimal impairment: other measures available and evidence is not “too complex” without explanation

42 ■ Deference: prospective decision, impact on public finances, competing interests, limited time, difficulty of presenting scientific evidence → evidence, time, research, but no concrete action ● McLachlin:​ not seeking money for healthcare or order for reducing waiting times → asking for private insurance ○ No freestanding right to healthcare but if healthcare scheme, must comply with Charter ○ No express prohibition on private health services but limited access through prohibition of insurance → delays result in adverse impact on security of the person and doesn’t conform with PFJs ○ Policy ramifications, complexity, contentiousness, and social values don’t limit judicial review ○ Delays in treatment and no choices result in psychological and physical suffering analogous to ​Morgentaler ○ Access to waiting list isn’t access to healthcare; dying and complications due to lack of timely care triggers s 7 ○ Arbitrariness: no relation to or inconsistent with law’s objective → need to have real (not theoretical) connection on the facts between limit and legislative goal; serious infringement requires clearer connection ○ Conflicting “common sense” arguments of diverted resources reducing care and reducing public burden through accessible alternative medical care ○ No evidential connection at trial based on other jurisdictions between monopoly and care → arbitrary ○ No evidence for s 1 and unsure if an arbitrary law will ever meet rational connection test; not minimally impairing since going further than necessary to protect public system; disproportionate to aggregate benefits ● Binnie (dissent)​: no manageable constitutional standard for “reasonable” time or health services ○ Serious and persistent problems with public healthcare system but fact-laden policy debate--not judicial ○ Liberty and security of people who don’t qualify for or can’t afford private insurance aren’t the ones put at risk by absence of upper tier healthcare--beneficiaries will be the ones who can pay and qualify ○ Finding of fact that private health sector would frustrate objectives of C​ anada Health Act ​ → ​social​ issue ○ Prohibition is not arbitrary simply due to disagreements about best policy; argument is based on fragmentary experiences, overly optimistic view of benefits, oversimplified view of adverse effects, and interventionist court ■ Rejects expansion of M​ orgentaler’​ s “unnecessary delays” into arbitrariness standard of inconsistency ■ State interest of high quality healthcare at a reasonable cost for as many people as possible; principled and practical relationship to ban of private insurance, and relation/consistency due to negative impact on waiting times, public support, and leaving difficult/costly care to public system ○ All provinces discourage private sector → recognizes that private sector undermines public one and ​CHA ■ Two-tier system enabling “ordinary” people to access private care: but US system has significant numbers that are uninsured and more harms for minority groups ○ Morgentaler​ not analogous: criminal law and manifest unfairness which don’t apply to social programs ○ S 7 not even applicable due to insufficient nexus to adjudicative or administrative proceedings ■ Life engaged for some individuals on some occasions but no liberty in freedom of contract, to deliver private care, or exercise chosen profession ​and ​ no principle of fundamental justice that is violated ■ “Healthcare to a reasonable standard within a reasonable time”: imprecise, no consensus, not legal ■ Case at bar: patient’s delayed hip surgery not due to waiting list but depression, indecision, unfounded complaints, heart attack → subjective unfairness and waiting list ≠ constitutional issue ■ No consensus on “timely” guidelines, no accurate data on severity of waiting lists, no particularized evidence, and waiting times universal for all healthcare systems, individual remedy of reimbursement Further Section 7 Developments ● Flora v OHIP​: unsuitable for liver transplant → underwent chemoembolization then liver transplant for $450k → denied reimbursement because not an insured service (no s 7 violation to not fund all treatment) ● Allen v Alberta:​ ​Chaoulli ​ distinguished because no security of the person violation on the facts ● Victoria (City) v Adams​: not obligated to provide housing but public shelter is unavoidable and ban for ensuring public access and protecting natural environment led to serious, life-threatening conditions, arbitrary, overbroad ● Tanudjaja v Canada (AG)​: homelessness and worsening condition due to policies etc → not justiciable