Flowchart(er)

Preliminary steps

A. Do the claimants have standing?

a. Private interest standing?

o Individuals: Any individual whose Charter rights have been violated has standing
to raise the Charter issue and seek a remedy under either s. 24(1) or s. 52(1)
 1) Raised as a collateral issue in ongoing criminal or civil proceedings
 2) Independent action may be commenced seeking declaratory relief or
other remedies
o Corporations: have rights under ss. 2(b) and 7 (if facing criminal prosecutions)
 No rights under s. 15
 Could possibly bring actions under s. 52(1) or using public interest
standing

b. Public interest standing?

Goal: access to justice (DTES Sex Workers United Against Violence), allows
courts to scrutinize gov’t action or law when no one else could (Thorson)
General: Should be granted in a broad and liberal manner—must not be exercised
mechanistically [imperative language] (DTES)
Comment: general concern about overburdening the courts with marginal or
redundant lawsuits—conserve judicial resources
Test (DTES):
 1) Does the case raise a serious justiciable issue?
o Is this issue substantial/far from frivolous?
 2) Does the party bringing the action have a real stake or genuine interest
in its outcome?
o Need for the courts to have the benefit of contending points of
view of the persons most directly affected by the issues
 3) Is the proposed suit a reasonable and effective means to bring the case
to court?
o Concerned with the proper role of the courts and their
constitutional relationship to other branches of gov’t

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B. Does the Charter apply?

32(1) 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;
and

(b) to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province.

a. Claim brought directly against a gov’t actor?

 If so, Charter applies; if not, it doesn’t (Dolphin Delivery)

 May apply to inaction or legislative omissions (Vriend). Specifically, the
“deliberate choice not to legislate” can be considered action. The Court
said that there is a positive obligation to respect the Charter both through
the government’s actions, and inactions.
o Vriend speaks to underinclusive legislation or action
o The Charter is not restricted to situations where the gov’t actively
or positively encroaches on rights
 If an omission where not subject to the Charter
underinclusive legislation which was worded in such a way
as to simply omit one class rather than to explicitly exclude
it would be immune from Charter challenge
 Form should not determine whether legislation is open to
challenge—substance should (Vriend)
 If the claim is being brought directly against the state, there is no debate
about Section 32 applicability. The Charter will ordinarily apply to all of a
government entity’s actions, and all provincial or federal laws. This
includes Ministers, officials employed in government departments, police
officers and other public agents that are subject to ministerial control or
charged with government responsibilities.
 Generally, the Charter is not directly applicable to the courts (Hill v
Church of Scientology)

b. Claim brought entity effectively controlled by/which forms part of gov’t?

 To form part of the gov’t, the gov’t exercise substantial control over
operations and activities of entity
o Whether entity is controlled is fact-dependent—are routine or
regular policies under the control of the gov’t or does body enjoy
internal legal autonomy?
o Look, for example, to governance bodies, decision-making
protocols, directness of state power. The fact that something is (1)
created by statute (2) carries out a public function and (3) is

2
 government funded may not be enough without direct control or
management by the state (McKinney)
 If gov’t is directing operations, entity may be an apparatus
of gov’t (Douglas College)
 Again, inquire whether entity enjoys internal
autonomy (Greater Vancouver Transportation
Authority), or if the gov’t could exercise control
over internal operations if it wanted to (McKinney)
o That entity serves a public purpose is not determinative of whether
entity is part of the gov’t (McKinney)
 Examples of institutions where this might apply:
o Colleges: (Douglas/Kwantlen Faculty Association v Douglas
College), (Lavigne v OPSEU) •
o Public transportation authorities: (Greater Vancouver
Transportation Authority v CFS-BC)

 Examples of institutions where this does not apply:

o Hospitals (Eldridge v British Columbia (AG))
o Universities (McKinney v University Guelph)

c. Claim brought against an entity exercising gov’tal functions?

General (Godbout):
o Section 32 applies to all entities that are essentially “governmental” in
nature/exercise governmental functions
o Entity must be acting in a governmental capacity, and not a public
capacity to establish that it is governmental in nature
o Factors to determine “governmental function” must be observed
 There is no list of pre-established factors
o Certain factors can indicate whether an institution is governmental
(for municipalities):
 1) Municipal councils are democratically elected by
members of the general public
 Highly significant indication of “government”
 2) Municipalities possess a general taxing power
 3) Municipalities are empowered to make laws, to
administer them and to enforce them within a defined
territorial jurisdiction
 4) Municipalities exercise powers conferred on them by
provincial legislatures
 Charter applies to provincial legislatures and
governments
o Must therefore apply to entities upon which
provincial legislatures and governments
confer governmental powers within their
authority

3
 Application to municipalities (Godbout), and certain professional bodies (Re
Klein and Law Society of Upper Canada; Black v Law Society of Alberta)

d. Claim brought against an entity implementing a gov’tal program?

o Private entities may be subject to the Charter in respect of certain inherently

governmental actions where they provided services in furtherance of a specific
governmental program or policy normally ascribed to the gov’t
 Where private actor actually implements and delivers the
program, and gov’t retains responsibility for it
 Inquiry into nature of the activity—scrutinize the quality of the
impugned action (Eldridge)
o See for example hospitals when delivering publicly-funded medical services:
Eldridge. In that case a direct connection was found between the government
program of healthcare provision and the hospital’s conduct.

e. Claim brought against entity exercising statutory powers of compulsion?

o See for example an adjudicator or tribunal when exercising power conferred

by legislation: (Slaight Communications Inc v Davidson), or (Blencoe v
British Columbia (Human Rights Commission)

C. What is the actual statutory provision, regulation, or government action in

question?

Sometimes the government act is actually a cancellation of a program (e.g., PHS),

done with some degree of ministerial discretion or on an arbitrary basis—can also
be inaction (Vriend)

D. What remedy are you seeking? (just touch on it here—save a substantive analysis for
the end)
a. Section 24(1) (applies to gov’t acts)
i. Charter damages
b. Section 52(1) (applies to legislation)

4
Section 2(b)

2 Everyone has the following fundamental freedoms: (…) (b) freedom of thought, belief, opinion
and expression, including freedom of the press and other media of communication; (…)

Test (Irwin Toy)

A. Was the plaintiff’s activity within the sphere of conduct protected by freedom of
expression?
a. Did the activity convey or attempt to convey meaning?
o If so, activity is expressive or has expressive content, and falls within the
scope of the guarantee
o Certain activities may require the P to show that the activity was performed to
convey meaning
b. Does method waive protection (i.e. violence)
 Threats of violence may be protected (Keegstra)
c. Does location waive protection? (Montreal v. Quebec)
i. Is location private or public?
ii. What is the historical or actual function of the place? Has place
traditionally been used or currently used for free expression?
1. Historical: an indicator that expression in that place is consistent
with purpose of s. 2(b)—where historical use of place includes free
expression, the location of the expression wrt to public property is
made out
2. Actual: is place essentially private despite gov’t ownership? Is the
function of the space compatible with public expression? Does it
require privacy or restricted access?
B. Was the purpose or effect of the gov’t action to restrict freedom of expression?
a. Purpose (content- or form-based restriction)
o If so, automatic infringement of s. 2(b)
o Content-based restrictions refer to where gov’t singles out particular
meanings
o Form-based restrictions refer to where gov’t restricts the form of the
expression to
o 1) control access by others to the meaning being conveyed, or
o 2) to control the ability of the one conveying the meaning
b. Effect (content-neutral restriction)
o Inquiry occurs when gov’t’s purpose is content-neutral—court must still
decide whether the gov’t action’s effect is to restrict the P freedom of
expression
o Law that in effect restricts expressive activities is violative only if P can
establish that the restricted expression advances one of the values underlying
the rights
o Burden shifts to P and Pl must state claim with reference to the principles and
values underlying the freedom—aim was to convey meaning reflective of:
i. Seeking and attaining the truth (an inherently good activity)

5
 ii. Participation in social and political decision making (to be fostered and
encouraged), or
iii. Individual self-fulfillment and human flourishing

6
Section 7

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.

A. Life: does the impugned action impose death or an increased risk of death on a person,
either directly or indirectly?
a. This right is normally engaged by the threat of death (Chaoulli)
b. The case law suggests that the right to life is engaged where the law or state
action imposes death or an increased risk of death on a person, either directly or
indirectly (Carter, Rodriguez)
B. Liberty: does the impugned action interfere with the right to fundamental personal
choices free from state interference?
a. Liberty protects the right make fundamental choices free from state interference
(Blencoe)
b. Liberty is also invoked whenever the risk of imprisonment applies (Motor Vehicle
Act Reference)
c. In Morgentaler, Wilson J.’s analysis of the meaning of liberty included the right
to make fundamental decisions about intimate dimensions of one’s life
i. This may also be captured in “security of the person” wrt to bodily
autonomy
d. In some cases there may be less than absolute prohibition but a series of
procedural constraints that restrict freedom (Morgentaler: wait times for
therapeutic abortion panels, and w/e other conditions)
C. Security of the person: does the impugned action interfere with an individual’s physical
or psychological integrity, including by causing physical or serious or profound
psychological suffering?
a. SoP encompasses a notion of personal autonomy involving control over one’s
bodily integrity free from state interference (Carter)
b. It is engaged by state interference with an individual’s physical or psychological
integrity, including any state action that causes physical or serious psychological
suffering (Carter)
c. State inaction may also be found to cause serious state imposed psychological
harm: for example, refusal to provide legal aid to parents who have had custody
of their children suspended was found to violate security of the person in this way
(G(J))
i. Stress, anxiety, stigma from admin/civil proceedings will not usually be
enough (Blencoe)
d. It consists of intimate rights to privacy of the body and its health and of the right
protecting the “psycho- logical integrity” of an individual. This is engaged in
Morgentaler (reproductive rights), Rodriguez and Carter (dying and death), PHS
Insite (addiction and safe drug use) and Bedford (sex work).

7
D. Causation
a. There must be a sufficient causal connection between the state-caused effect and
the prejudice suffered by the claimant
i. Doesn’t require that the gov’t action or law be the only or even dominant
cause of the prejudice suffered by the claimant—link can be simply
substantial
1. Simply need a real, as opposed to imagined, link
2. Need not be reasonably foreseeable
E. If so, is deprivation in accordance with PFJs?
a. What is the purpose, objective or state interest of the impugned action?
 In Carter the court warns about formulating this purpose too broadly.
Sometimes there is more than one purpose, try to assess all of them.
 Recall that it is possible for an exercise of discretionary power granted by
an otherwise constitutional law to be unconstitutional (for example, in
PHS it was found that while the law was valid, the failure to grant an
exemption for Insite was problematic.
b. Arbitrariness: is there a direct, rational connection between the purpose of the
law and the impugned effect on the individual?
• Various formulations: Is the law “necessary” to achieve the objective; is it
“inconsistent” with the interest or does it “bear no relation” to the interest?
(see PHS)
• There must be a rational connection between the object of the measure that
causes the s. 7 deprivation, and the limits it imposes on life, liberty, or
security of the person. A law that imposes limits on these interests in a
way that bears no connection to its objective arbitrarily impinges on those
interests (Bedford)
c. Overbreadth: are the restrictions on the individual’s life, liberty and/or security
of the person more broadly framed than necessary to achieve legislative purpose?
 Overbreadth deals with a law that is so broad in scope that it includes some
conduct that bears no relation to its purpose. In this sense, the law is arbitrary
in part. At its core, overbreadth addresses the situation where there is no
rational connection between the purposes of the law and some, but not all, of
its impacts. (Bedford)
 The overbreadth inquiry asks whether a law that takes away rights in a way
that generally supports the object of the law, goes too far by denying the
rights of some individuals in a way that bears no relation to the object…
(Carter)
 Carter was decided on this basis: a blanket prohibition limited the rights of a
specific class of people (the terminally ill, criteria in the case) in a way that
violated their rights by forcing them to commit suicide at a time earlier than
they would have for fear that they would be incapable of doing so later.
d. Gross disproportionality: are the law’s effects on the individual’s life, libety or
security of the person so grossly disproportionate to its purposes that they cannot
be rationally supported?
 The rule against gross disproportionality normally applies in extreme
cases where the seriousness of the deprivation is totally out of sync with

8
the objective of the measure. Captured by the hypothetical of a law with
the purpose of keeping the streets clean that imposes a sentence of life
imprisonment for spitting (Bedford)

9
Section 15

15(1) Every individual is equal before and under the law and has the right to the equal protection
and equal benefit of the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) 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.

General: Test is set out in Kapp and modified by Withler

A. Does the impugned action/legislation create a distinction based on a prohibited

enumerated or analogous ground either through direct formal discrimination or
adverse effects?
a. Enumerated grounds?: race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability (s. 15(1))
b. Analogous grounds?:
o Based on a personal characteristic that is immutable or that the gov’t has
no legitimate interest in expected the equality seeker to change to receive
equal treatment under the law (Corbiere)
o To determine whether a group can be distinguished on an analogous
ground, the court should consider whether a group is part of a discrete and
insular minority and whether there has been historical disadvantage and
stereotyping (Corbiere)
o The criteria of “immutability” is less and less important
o Established analogous grounds: age, sexual orientation, marital status,
receipt of child support payments, and citizenship (Andrews)
o Analogous grounds are permanent (Corbiere)
o Excludes: employment status or occupation, province of residence,
marijuana users, etc.
c. Differential treatment or adverse effects?
o Adverse effects: Does the law impose, because of special characteristics of
an individual, obligations, penalties, restrictions, or burdens because of
that characteristic? Or has benefit been deprived? (Eldridge; Auton)
o Formal discrimination: in some cases, that distinction will be made
directly and explicitly on the basis of an enumerated or analogous ground
o Court has emphasized a commitment to substantive equality and
abandoned a purely formal approach to equality claims (Andrews)
o In some cases, a group will be intentionally omitted (Vriend)
o In other cases a purportedly neutral law has a disproportionately negative
impact on a group that can be identified by factors relating to enumerated
or analogous ground (Eldridge)

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B. Is the distinction saved by 15(2)?
a. Is the impugned action a law, program or activity?
o This is meant to deal with affirmative action-type programs (Kapp,
Cunningham)
b. Does the impugned action, law, or program have a genuine ameliorative
or remedial purpose?
o There must be reasonable evidence and intention for the program to be
genuinely ameliorative, and not just incidentally so (Kapp)
c. If so, does the law, program or activity target a disadvantaged group
identified by the enumerated or analogous grounds?
o Note that underinclusive programs are allowed (Cunningham):
“Section 15(2) affirms that governments may not be able to help all
members of a disadvantaged group at the same time, and should be
permitted to set priorities. If governments are obliged to benefit all
disadvantaged people (or all subsets of disadvantaged people) equally,
they may be precluded from using targeted programs to achieve
specific goals relating to specific groups. The cost of identical
treatment for all would be loss of real opportunities to lessen
disadvantage and prejudice.”
C. If the distinction is not saved by 15(2), does it constitute substantive
discrimination either by 1) perpetuating disadvantage or prejudice, or 2)
inappropriately stereotyping the excluded group?
a. Does the distinction perpetuate prejudice or disadvantage to members of a
group on the basis of personal characteristics identified in the enumerated and
analogous grounds?
b. Alternatively, does it stereotype based on these grounds in a way that results
in a decision which does not correspond to a claimant’s or group’s actual
circumstances and characteristics?
i. It is conceivable that a group that has not historically experienced
disadvantage may find itself the subject of conduct that, if permitted to
continue, would create a discriminatory impact on members of the
group (Withler)
c. Contextual factors
 The analysis is contextual, not formalistic, grounded in the actual situation
of the group and the potential of the impugned law to worsen their
situation (Withler)
 In making this assessment, the court may consider contextual factors
(Law) including:
o (1) Pre-existing disadvantage, stereotyping, prejudice, or
vulnerability experienced by the individual or group at issue
 Not strictly necessary
 If demonstrated, impugned law compounds historic
disadvantage suffered by group
o (2) The correspondence, or lack thereof, between the ground or
grounds on which the claim is based and the actual need, capacity,
or circumstances of the claimant or others

11
  Does the law take into account the actual circumstances,
needs and capacities as human beings therefore affording
them human dignity
o (3) The ameliorative purpose or effects of the impugned law upon
a more disadvantaged person or group in society (i.e., is the law
trying to accommodate someone else?)
 Largely subsumed by s. 15(2)
o (4) The nature and scope of the interest affected by the impugned
law
 The more significant the impact on the claimant, the more
likely the court will recognize the differential treatment as
discriminatory
 Does it deny the claimant access to basic social
institutions, etc.
While “human dignity” is no longer a strict requirement of the test (Kapp) it may still be useful
to articulate whether the impugned action has any bearing on this principle.

12
Section 1

1 The Canadian 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

 Test is outlined in Oakes with a modification to salutary and deleterious effects added by
 The burden of proof shifts to the government to demonstrate that the impugned action is a
reasonable limit on the right in question (Oakes)
o They must provide meaningful evidence to substantiate this.
 A contextual approach recognizes that a right or freedom may have a different value
depending on the context—consider in context and not abstractly
o For example, publication of matrimonial rights is not an abstract debate between
“freedom of the press” and “privacy rights,” but rather grounded in the reality of
those affected (Wilson J in Edmonton Journal v Alberta)

A. Is the limit prescribed by law?

 The underlying idea here is that if a right is to be limited, these limits should be public,
understood, authorized, with notice, and sufficiently precise
o This idea is connected to rule of law (Nova Scotia Pharmaceutical Society)
 What is required is that the law in question be sufficiently intelligible to provide fair
notice to citizens, that is, “an understanding that certain conduct is the subject of legal
restrictions” (p. 635). In addition, the law must be precise enough that it sufficiently
describes the boundaries of unlawful conduct and delineates “an area of risk to allow for
substantive notice to citizens” (p. 639).
 Basically, if the action is not prescribed by law, but rather simply allowed by it (by
conferring discretion on an individual, for example), that power can be exercised in an
unconstitutional way and should be evaluated for whether it constitutes a reasonable
limit.
 “Vagueness” can also be raised on the basis that a legal enactment is so vague that it
does not satisfy the requirement that a limitation on Charter rights be “prescribed by law”
o This is also connected to the “minimal impairment” stage (Morgentaler, Oakes,
Irwin Toy, Prostitution Reference)
B. Is the law aimed at a pressing and substantial objective?
 The state cannot rely on a purpose different from what animated the law at time of
enactment (Big M) but they may shift their emphasis from one purpose to another
(Butler)
 The objective to be served by the measures limiting a Charter right must be sufficiently
important to warrant overriding a constitutionally protected right or freedom
o The standard must be high to ensure that trivial objectives or those discordant
with the principles of a free and democratic society do not gain protection.
(Oakes)
 As a general rule, courts are quite deferential to government objectives and are reluctant
to find a failure at this stage.
 Vriend is an example of where an absence of a law could not be “pressing and
substantial” because it actually ran directly contrary to the purpose of the statute.

13
 In Big M Drug Mart, the Lord’s Day Act was simply found to be not pressing or
substantial enough to justify the limitation.
 Note that the court is most likely to be deferential where vulnerable social groups are
being protected by the limitation, if there is conflicting social science evidence, or if
certain elements seem arbitrary (eighteen as an age for voting, for example)
o There is a concern that otherwise, the Charter could be used as a mechanism to
roll back measures to protect vulnerable groups (Irwin Toy).
C. Are the means used in the law proportionate to its objectives?
 The party invoking s. 1 must show the means to be reasonable and demonstrably
justified. This involves a form of proportionality test involving three important
components:
a. Is there a rational connection between the limit and the objectives of the
law?
 Does the state action make any assumptions?
 Are those assumptions logical?
 The measures must be fair and not arbitrary, carefully designed to
achieve the objective in question and rationally connected to that
objective
 A law that does not rationally advance the pressing and substantial
purpose for which it was enacted is unnecessarily restricting the
right or freedom.
b. Does the law minimally impair the right?
i. Level of deference required?
 Level of deference tied to context
 At least three different ways in which a court can defer to
legislative judgment or lower the standard of justification
(Irwin Toy):
1) Judicial deference to relevant findings of fact by the legislature
(or a lowering by the court of the standard of proof that the legislature
must meet when establishing the factual basis for its justification
argument)
2) Deference to the legislature’s accommodation of competing
values or interests
a. A court’s reluctance may be greater when it recognizes
that the legislature is making a reasonable attempt to
protect the interests of a vulnerable group or to
accommodate competing “private” interests
3) Deference as lowering the standard of justification under s. 1
b. Refer to texts
c. Rights and context specific
 However (RJR MacDonald)
o A) Deference is appropriate in certain contexts—there
are limits to deference
o B) But, the role of the legislatures and courts must be
respected

14
  Court is to determine “objectively and
impartially” whether Parliament’s [response to a
social problem] falls within the limiting
framework of the Constitution
o C) Deference cannot relieve the government of its
burden:
 “Court cannot simply accept Parliament’s
solution because the problem is serious and the
solution is difficult”
ii. Does solution fall within a range of minimally impairing solutions?
 Law must be carefully tailored so that rights are impaired no
more than necessary
 If the law falls within a range of reasonable alternatives, the
court will not find it overbroad merely because they can
conceive of an alternative that might better tailor objective to
infringement
o More be a range of minimally impairing solutions—
legislation needs to fall within that range
 More difficult to justify a complete ban on a form of
expression than a partial ban
o A full prohibition will only be constitutionally
acceptable under the minimal impairment stage where
the gov’t can show that only a full prohibition will
enable it to achieve its objective (RJR MacDonald)
c. Do the law's deleterious effects outweigh its salutary ones? (Dagenais v
Canadian Broadcasting)
 There must be a proportionality between the effects of the limiting
measure and the objective: the more severe the deleterious effects of a
measure, the more important the objective must be
 This last ”balancing” step rarely plays more than a formal role because
most of the work is done at the stage of minimal impairment or
rational connection
 This is meant to consider where the challenged law may not be
completely successful in achieving the objectives for which it was
enacted (as in Dagenais with a publication ban to ensure a fair trial)
 The court is increasingly testing this out (as in R v Sharpe) where the
protection of children posed by a tiny proportion of pornography could
not be justified when weighed against the freedom of expression
interests tied to the remainder.

Notes re: Freedom of Expression, 2(b) Section 1 Analysis

 The court is more likely to uphold limits on freedom of expression when that speech
strays from the “protected core” of expressive acts. This is obvious in the hate speech

15
 cases, but is also the case regarding commercial expression: Irwin Toy; Montreal v.
2952-1366.
 Irwin Toy is likely the “high water mark” for the court’s deference to the legislature. The
acceptance of a ban on advertising toward children is in part connected to the commercial
nature of Irwin Toy’s intended expression, and the fact that advertisers would always be
able to sell to adults. The effects of the ban, said the Court, were not so severe as to
override the objective of the ban.
 Professor Richard Moon suggests that there is an unduly individualistic approach where
speech should be understood in collective, social dimension, as relational, and that speech
operates in community
o “The focus of these accounts on the different interests of the speaker and the
listener misses the central dynamic of the freedom, the communicative
relationship, in which the interests of speaker and listener are tied”
 In Ford, the court balanced freedom of expression against the legislative objective of
promoting the French language and found an outright ban unacceptable on the minimal
impairment basis. However, they said the predominant display of the French language,
would be proportional to the goal of promoting and maintaining a French “visage
linguistique” in Quebec.
 WRT political expression, certain additional contextual factors may be considered when
determing the appropriate level of deference to Parliament (Harper):
 Context of the impugned provision determines the type of proof that a court will require
of the legislature to justify its measures under s. 1 (Thomson Newspapers Co. v. Canada
(AG), 1998 SCC)
 (a) Contextual factors:
o (i) the nature of the harm and the inability to measure it
 Legislature not required to provide scientific proof based on concrete
evidence of the problem it seeks to address in every case
 Court may rely on a reasoned apprehension of harm
 In the absence of determinative scientific evidence, court may rely on
logic, reason, and some social science evidence in the course of the
justification analysis
 Election fairness is difficult to measure
o (ii) vulnerability of the group
 Third party spending limits seek to protect two groups:
 1) The Canadian electorate by ensuring that it is possible to hear
from all groups and thus promote a more informed vote
o Generally the Canadian electorate “must be presumed to
have a certain degree of maturity and intelligence”
 2) candidates and political parties—ensure equal opportunity to
present their positions to the electorate
o All parties are capable of acting as a vehicle for the
participation of individual citizens in the public discourse
that animates the determination of social policy [Figueroa
v. Canada (AG), [2003] SCC]
o (iii) subjective fears and apprehension of harm

16
  Perception is of the utmost importance in preserving and promoting
Canada’s electoral regime
 Public perceptions are critical precisely because the legitimacy of
the election regime advances the values of their electoral
democracy
 Where Canadians perceive elections to be unfair, voter apathy follows
shortly thereafter
 Several surveys indicate that Canadians view third party spending limits as
effective means of advancing electoral fairness
o (iv) the nature of the infringed activity: political expression
 Third party advertising enriches the political discourse
 As such, the election advertising of third parties lies at the core of the
expression guaranteed by the Charter and warrants a high degree of
constitutional protection
 In some circumstances, third party advertising will be less
deserving of constitutional protection
 The danger that political advertising may manipulate or oppress
the voter means that some deference to the means chosen by
Parliament is warranted
 See Libman
 By limiting political expression, the spending limits bring greater balance
to the political discourse and allow for more meaningful participation in
the electoral process
 On balance, the contextual factors favour a deferential approach to Parliament in
determining whether the third party advertising expense limits are demonstrably justified
in a free and democratic society
 Given the difficulties in measuring harm, a reasoned apprehension that the absence of
third party election advertising limits will to electoral unfairness is sufficient
o Political choices are best made by Parliament

Notes re: Life, Liberty, Security s. 7: No Section 1 Analysis

 The standard of fundamental justice imposes a stricter test than section 1
 Thus, any law which violates the principles of fundamental justice will most likely not be
justifiable in s. 1

Notes re: Equality Rights s. 15 Section 1 Analysis

 The contextual factors analysis reduces reliance on Section 1, but we proceed with the
test anyway.
 In Andrews the test failed on the basis of a rational connection: the requirement of
citizenship was not logically or rationally connected way to ensure lawyers were
familiar with Canadian law
 The minimal impairment analysis bears some similarities to the concept of
“reasonable accommodation” that has developed in anti-discrimination law under
human rights codes

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 o This is the idea that often, regulations may not need to be disposed of entirely,
but rather that the state can make exceptions or accommodate in certain cases.
(Bouchard-Taylor)
 A similar observation was made in Eldridge: the hospital had an obligation to
accommodate deaf patients (almost like a “reasonable accommodation” argument).
Employers have a similar duty to accommodate their employees (BC v BCGSEU,
Sheppard).
 Think about Auton: unlike in Eldridge, there is no obligation to accommodate in
unlimited ways
o In this case, the controversial autism therapy was not deemed “medically
required” (but rather experimental and emerging) and thus not part of the core
medical treatment the state is obligated to provide
 What is the relationship between the unwritten constitutional principle of protection
of minorities (Secession) and equality rights?

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Remedies

A. Section 24(1)

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

 Section 24(1) is relatively discretionary

o Has two components:
 1) “Appropriate and just”
 2) “According to the court”
 Section 24 remedies can come in the form declaratory relief (e.g., Little Sisters,
Eldridge, Doucet-Bourdreau) or injunctive relief (an injunction is a court order)
 From Doucet-Boudreau, principles for an “appropriate and just” remedy under
s. 24:
o 1) Meaningfully vindicates the rights and freedoms of claimants
o 2) Employs means which are legitimate within framework of
constitutional democracy
o 3) Vindicates the right while invoking the function and powers of a court
(institutional competence)
o 4) Fair to party against whom the order is made
o 5) May need novel or creative remedies — “what is appropriate an just in
the circumstances.”
 Injunctions should be clear and precise and tailored to an obvious goal
o Might need to argue that a declaration would be an ineffective remedy
 Implicit in the declaratory remedy may be the presumption that the
government will act in good faith in rectifying Charter wrongs and
the recognition that legislatures and executives, not the courts, are
in the best position to decide exactly how this should be (Doucet-
Boudreau)
 Courts tend to favour declarations
o Declarations are often preferable to injunctive relief because they are more
flexible, require less supervision, and are more deferential to the other
branches of government
 However, declarations can suffer from vagueness, insufficient
remedial specificity, an inability to monitor compliance, and an
ensuing need for subsequent litigation to ensure compliance (Little
Sisters)
 Steps for Charter damages (Ward):
o 1) P has established Charter breach
o 2) Damages necessary to fulfill objects of:
 Compensation: focuses on the claimant’s personal loss (physical,
psychological, and pecuniary)
 Harm can include distress, humiliation, embarrassment, and
anxiety

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  Vindication: focuses on the harm caused to society by the
infringement
 Deterrence: seeks to regulate/influence gov’t behaviour to achieve
compliance with the Charter
o 3) State has failed to establish any factors that render s. 24(1) damages
inappropriate or unjust in the circumstances
o 4) The quantum of damages equals the purpose of the damages award
 Should be determined with a mind on fairness to the gov’t
particularly as damages are borne from the tax base

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 B. Section 52(1)

52(1) 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.

 Section 52 remedies may include:

o 1) Declaration of invalidity, striking a law down (Big M)
o 2)Declaration of partial invalidity
 a) Severance (Morgentaler, Bedford, Carter, where a section of the
Criminal Code is struck down)
 b) Reading in (Vriend, Schachter)
o 3) Reading down (interpreted not to apply) (McKay)
o 4) Temporary suspension of order (Manitoba Language Rights, Bedford,
Carter)
o Twin guiding principles of respect for the role of the legislature (remain as
faithful as possible to the legislative scheme) and the purposes of the
Charter (would striking down an underinclusive law further the aims of
the Charter?)

In crafting a s. 52 remedy, court should consider:

o The extent of inconsistency

o 1) the extent to which the law violates the Charter and the manner in
which it fails to be justified under s. 1
 If no pressing and substantial legislative objective, then
inconsistent portion must be struck down broadly
 Pressing and substantial but means not rationally connected, whole
of the portion of the legislation that fails the rational connection
test is the inconsistency to be struck down (severance)
 No minimal intrusion or disproportionate effects to purpose, then
inconsistency can be defined as being the provisions left out that
would carefully tailor it or would avoid disproportionate effect
 Inconsistency would be declared inoperative—statute
would be extended by way of reading in
Whether to strike down, sever, or read in
o 2) Remedial/sufficient degree of precision: court must be able to define
how the statute ought to be extended in order to comply with the
Constitution, and should not fill large gaps in legislation (Vriend)—
determine precisely what must be severed or read in to comply with
Charter; solution must be clear and obvious; if there are choices or options
to make the law constitutional, the legislature should make that choice
 Severance: inconsistent part of the statutory provision can be
defined with some precision on the basis of the requirements of the
Constitution
 Reading in: above is not always the case with “reading in”—court
should not read in in cases where there is no manner of extension

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 that flows with sufficient precision from the requirements of the
Constitution
o 3) Interference with legislative objective: concerned with illegitimate
intrusion into the legislative sphere
 Objective itself must be considered
 Legislature’s choice of means to implement its objective must be
examined
 Avoid unwarranted intrusions into the legislative domain
 Should not craft remedies with significant budgetary
implications for the legislature
o In determining whether reading in is appropriate…
the question is…the appropriate degree to which
courts may make decisions that impact on
budgetary policy
 Reading in or severance only appropriate if they achieve
legislature’s objective and respect the means chosen
 1) Budgetary impact: what are the budgetary repercussions
for gov’t (proxy for intent)
o 4) Change in the significance of the remaining portion: ask whether the
significance of the part that would remain is substantially changed when
the offending part is excised
 Where the group to be added is smaller than the group originally
benefitted, this is an indication that the assumption that the
legislature would have enacted the benefit in any case is a sound
one
 When the group to be added is much larger than the group
originally benefitted, this could indicate that the assumption
is not safe
o Numbers may indicate that for budgetary reasons,
or simply because it constitutes a marked change in
the thrust of the original program, it cannot be
assumed that the legislature would have passed the
benefit without exclusion
o 5) Significance of the remaining portion: if the remaining portion is very
significant [?], or of a longstanding nature, it strengthens the assumption
that it would have been enacted without the impermissible portion
 The fact that the permissible part of the provision is encouraged by
the purposes of the Constitution, even if not mandated by it,
strengthens the assumption that the legislature would have enacted
it without the impermissible portion
 Would the legislature have enacted the modified legislation?
o Whether to temporarily suspend the declaration of invalidity
 Would striking down a provision pose a potential danger to the
public? Emergencies (R. v. Swain)
 Threaten rule of law (Re Manitoba Language Rights)? (allows
legislature to provide a comprehensive solution)

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 May be appropriate where invalid legislative provision or
legislation is underinclusive
 Striking down could deprive deserving persons of benefits
without providing those benefits to the applicant (avoids
harsh results for deserving beneficiaries)

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