Exam Guide

How to do a Charter Analysis: (these are the steps to be used all the time)
1.

2.

Does the Charter apply? What is government for the purpose of s. 32 & 52 s. 32 applies to the
parliament of Canada, leg of province, and their actors.
a. Where exercise of, or reliance upon, governmental action is present and where one private party
invokes or relies upon it to produce an infringement of the Charter rights of another, the Charter
will be applicable. Where however, private party A sues private party B relying on the
common law and where no act of government is relied upon to support the action, the Charter will
not apply.
b. An entity must be controlled by government in some way in order to be classified as government
under the Charter
c. If the actor is private
i. Is entity is performing an inherently government function
ii. If not: challenging the statute itself If the statute is unconstitutional, the private actors
reliance on it is also unconstitutional
d. Law preventing discrimination must be comprehensive. The Charter will apply to Legislative
omissions.
i. Vriend v. Alberta, 1998 (CCL 805)
e. The common law must be examined in light of the Charter values
i. Hill v. Church of Scientology of Toronto, 1995 (CCL 811)
ii. CBC v. Dejeunais
f. The Carter maybe used to limit the common law
i. RWDSU v. Pepsi Cola, 2002 (CCL 813)
Has a Charter Right been breached (Rights claimant to prove) ~ look at case law to see the scope of the
right.
a. Freedom of Expression s. 2 (b):
i. Must take a two step approach to a section 2(b) analysis: - Butler
1. Was the plaintiffs conduct within the sphere of conduct protected by freedom of
expression?
a. Under the first step, as long as an activity is expressive and
attempts to convey a meaning it will be protected by s. 2(b). Violent
speech is the only type of speech that is not protected and there may
even be exceptions to this (threats of violence may be considered
expression according to Keegstra).
b. The utility or value of the speech will not be considered here, this is
covered in the s. 1 analysis.
2. Was the purpose or effect of the government action to restrict freedom of
expression? (Time, Manor and Space)
a. Under the second step, there are two ways in which government
can attempt to control speech:
i. Attempting to control the content of speech
ii. Restrict a specific form of expression (i.e. is postering visual
litter or distraction or inappropriate use of space?)
3. If the governments purpose in passing the law was not to restrict expression but
it does in fact restrict expression then it must be shown that the speech is
connected to one of the three core values of the freedom of expression:
a. TRUTH SEEKING - Seeking and attaining the truth is an inherently
good activity
b. POLITICAL DECISION MAKING - Participation in social and
political decision making is to be fostered and encouraged
c. SELF FULFILLMENT - The diversity in forms of individual selffulfillment and human flourishing ought to be cultivated in an
essentially tolerant, welcoming environment.

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4.

Once these two steps are passed (and they almost always are), you then move on
to a section 1 analysis.
ii. Look at case law to find a similar case:
1. Commercial/Economic Speech
a. Irwin Toy v. Quebec (A-G)
b. RJR MacDonald Inc. v. Canada (Attorney General)
c. R. v. Guignard
2. Hate Speech
a. R. v. Keegstra
3. Sexual Expression
a. R. v. Butler
b. Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
c. R. v. Sharpe
4. Control of Election Spending - Canada v. Harper
5. State Support for Expression -Native Womens Association of Canada v. Canada

b. Freedom of Association s. 2(d): Most of the work under this section occurs in the section itself and

c.

not much goes on in s. 1. The court almost never finds a breach of 2(d) the litigant has to prove
the breach. Most of the work under s. 2(d) has been on the labour front, although it could apply to
gang association, gang law, and political parties
i. Freedom to associate:
1. S. 2(d) protects the freedom to establish, belong to and maintain an association;
it does not protect an activity solely on the ground that the activity is a
foundational or essential purpose of an association; it protects the exercise in
association of the constitutional rights and freedoms of the individuals; it
protects the exercise in association of the lawful rights of individuals.
2. does not include the right to strike. Fundamentally, it is about the right of an
individual to join a group
a. The right to strike was considered to be too new by the courts to be
classified as a fundamental right and as such it is up to the legislatures
to control it
ii. Freedom not to associate
1. There is a recognized freedom not to associate under s. 2(d) of the Charter
Equality s.15
i. S. 15(1) does the law demean the claimants dignity

Equality before and 15.

under law and
equal protection
and benefit of law

(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.
1.

To determine if the government has breached s. 15(1) the claimant must

establish:
a.

That the law imposes differential treatment between the claimant

and others in purpose or effect
i. Distinction test; Does the law discriminate; it is rare that this
is not satisfied. From Law
1. It is not always about a formal distinction, it can also
be discrimination by being treated the same; people
with disabilities may need accommodation.
2. The law does not have to be intentionally
discriminatory

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3.

2.

Must show discrimination; you have to show that the

law denies people the benefit of the law on the basis
of an relevant characteristic
b. That one or more enumerated or analogous grounds of
discrimination are the basis for the differential treatment
i. Grounds must be listed or analogous grounds; once
something is established as analogous grounds then it is
always recognised as analogous grounds. From Law
c. That the law in question has a purpose or affect that is
discriminatory within the meaning of the equality guarantee. Whether a reasonable person in circumstances similar to those of the
claimant would find that the legislation which imposes differential
treatment has the effect of demeaning his or her dignity. USE THE
CONTEXTUAL FACTORS
FOUR CONTEXTUAL FACTORS: (these are guidelines not rules; use your gut
feel and then fit it in)
a. Pre-existing Disadvantage
i. Look at historic disadvantage suffered by the group (History
of discrimination)
ii. This alone is not enough see Walsh v. Bone (2003) SCC
b. 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. More difficult to
establish discrimination to the extent that the law takes into account the
claimants actual situation in a manner that respects his or her value as
a human being or member of Cnd. Society and less difficult to do so
where the law fails to take into account the claimants actual situation
i. what are the circumstances of the claimant (and people in a
similar group). Does the law adversely effect the need of
the claimant group
ii. does the law take this into account
iii. does the law disadvantage or add to this need
iv. does the legislation take into account and accommodate the
need
v. Example is Eaton case which involved a special education
program for kids with special needs. In this situation, the
board determined that the child should be in a special needs
classroom rather than a general one; the parents disagreed. In
this case, the court said that because the legislation took into
account the actual needs of the claimant there was not
discrimination
c. Ameliorative Purpose or Effects ~ more used for 15(2) Im worst off
then you sinareo (dominative purpose of effect)
i. is it intended to help a particular group, does not make it
discriminatory
ii. (The fact that the law does not help a more advantaged group
does not create a disadvantage)
iii. The court said in Vriend that if you are going to have
legislation that is going to have ameliorative effects then it
cannot be underinclusive.
iv. The court added to this in Lovelace where it said that you can
have ameliorative programs for some and you do not always
have to include people in similar situations. In this case a
group of people not included in the Indian Act said a program
that gave preferential treatment to First Nations in the

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establishment of casinos was discriminatory because they
were not included. They lost.
d. Nature of the Interest Affected (Nature and Scope of the interest) ~
most of the time this is not a factor; for it to be a factor it must effect a
very specific group i.e. same sex marriage
i. If it effects access to a fundamental social institute it would
most likely be discriminatory
ii. Does one group bare the brunt of the law
iii. The court here is looking at if the law has a very severe effect
on a particular group of people; if it does, it is more likely that
the distinction is discriminatory.
3. Enumerated grounds under s.15 (1):
a. race,
b. national or ethnic origin,
c. colour,
d. religion,
e. sex,
f. age
g. mental or physical disability
4. Analogous ground: There have only been four analogist grounds recognised to
date: Regarding analogise grounds p. 1199 paragraph 13: It seems to us that
what theses grounds have in common is the fact that they often serve as the basis
for stereotypical decisions made not no the basis of merit but on the basis of a
personal characteristic that is immutable or changeable only at unacceptable cost
to personal identity read and know - Corbiere
a. sexual orientation
b. marital status
c. status of being an off reserve band member
d. citizenship - Andrews
5. To determine if a ground should be analogous:
a. Look for grounds of distinction that are analogous or like the grounds
enumerated in s. 15.
b. Must serve as a basis for stereotypical decision making not based on
merit but on the basis of a personal characteristic that is immutable or
changeable only at an unacceptable cost to identity.
i. Maybe political vulnerable this has been pushed by the
minority a couple of times.
ii. S.15(2) protection of affermitive action programs
Affirmative action
programs

(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

d. Life, Liberty and Security of the Person: S. 7

Life, liberty and
security of person

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.

i. The s. 7 analysis can be broken into two pieces:

1. Threshold of Life, Liberty and Security of the Person
a. Has there been a violation of life, liberty and security of the person?
i. 2 3 sets of issues
1. how and to what extent is body integrity protected by
llsp

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2.

3.

Can a human dignity claim (one not captured as

discriminatory by s.15) be made under llsp
3. Does s.7 protect the right to social welfare
ii. There is no real s. 1 analysis it is sort of done in the first part.
2. Principles of Fundamental Justice
a. Ask questions.
i. Does it have a foundation in our legal tradition? Does it have
a legal doctrine?
ii. Is there a social consensus that it is a principle of fundamental
justice? Would the action proposed shock the conscious of the
nation?
iii. Is the law vague as to ascertain its limits?
iv. Is the law manifestly unfair? Is it arbitrary or over-inclusive?
v. Does the law strike an appropriate balance between social
interests and individual interests? (Suresh)
b. Articulate what basic tenet of the legal system the law seems to violate
i. In Morgentaler the basic tenets asserted were: state
interference with bodily integrity with fear of criminal
sanction, the woman has the right to make a fundamental
personal choices including the right to reproduce without fear
of state interference (without fear of criminal sanction), and
the right to access medical treatment for potential danger to
life or health without state imposed stress (without threat of
criminal sanction).
ii. In Rodriguez the claimed basic tenets were; respect for human
dignity, the right to control the timing of your death and the
right to choose assisted suicide.
iii. In the Motor Vehicle Reference the presumption of innocence
and proof of mens rea were claimed as the basic tenets.
iv. In Suresh the basic tenet claimed was abhorrence for torture;
cant return a refugee where there is a significant risk of
torture
c. Is this limited to procedural rights or is there also an ability to review
substantive aspects of the law
d. do it violate a basic tenant of the legal system btls
Section 1 analysis or justification analysis (The Crown to prove))

Rights and
freedoms in
Canada

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.

a. s.1 has 2 functions:

b.

ii. constitutionally guaranties the rights and freedoms set out in the provisions which follow
iii. it stated explicitly the exclusive justification criteria (outside of s.33) against which
limitations on those rights and freedoms must be measured
Evoking s.1
i. Any s.1 inquiry must be premised on the understanding that impugned limit violates
constitutional rights and freedoms
ii. Contextual element of interpretation of s.1 is provided by the words free and democratic
society. Inclusion of these words as the final standard of justification for limits on rights
and freedoms refers the Court to the very purpose for which the Charter was originally
entrenched in the Constitution: Canadian society is to be free and democratic
iii. The onus of proving that a limitation on any Charter right is reasonable and demonstrably
justified in a free and democratic society rests upon the party seeking to uphold the

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4.

limitation. Limits on constitutionally guaranteed rights are clearly exceptions to the

general guarantee. The presumption is that Charter rights are guaranteed unless the party
invoking s. 1 can bring itself within the exceptional criteria justifying their being limited.
The standard of proof is the civil one; BALANCE OF PROBABILITY.
c. Has the breach been prescribed by law (normally straight forward)
i. Is it an intelligible standard (Butler, Little Sister and Sharpe)
1. Courts always finds that an intelligible standard
d. Is it demonstrably justifiable in a free and democratic society (This is the important part)
e. Oakes Test: Two central criteria must be satisfied to establish that a limit is reasonable and
demonstrably justified in a free and democratic society.
i. (The pressing and substantial test) 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. The Court rarely finds that the restriction fails the first test;
1. 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.
2. At a minimum, an objective must relate to societal concerns which are pressing
and substantial in a free and democratic society before it can be [page106]
characterized as sufficiently important.
ii. (Proportionality test) 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.
1. (Rational Connection) To begin, the measures must be fair and not arbitrary,
carefully designed to achieve the objective in question and rationally connected
to that objective.
2. (Minimal Impairment) In addition, the means should impair the right in question
as little as possible. (this is the most common area for the law to violate s. 1)
a. is it a singular antagonist or competing interests
b. If singular antagonist it is held to a higher standard
3. (Proportionality; or balance Salutary & Deleterious effects) Lastly, there must
be 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. (Sharpe failed here)
a. This is the place for the value of the speech.
What remedies are available
a. Section 52 - Generally you want the law struck down, but there are other more complicated
remedies under this section as well:
i. Simple Declaration of Invalidity
1. the law is effectively struck down; the court may hint at what a constitutional
law might look like but they do not draft the new law
2. This occurred in Sauv
ii. Delayed Declaration of Invalidity
1. Law is declared invalid but is suspended for a certain period of time, usually
between 6 months and a year, to give the government a chance to respond to the
situation without causing immediate chaos.
2. Example is case of M v. H; where on partner of a lesbian couple who had split
up challenged a specific definition in the maintenance section of the Ontario
Family Law Act. The law was declared invalid but suspended for six months
because if it was struck down outright it would have meant no one owed any
family support.
iii. Severance
1. This involves striking out only the offending part of the Act while leaving
everything else in place

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2. This is appropriate if the following question would be answered in the

b.

affirmative; would the legislature have enacted the rest of the statute without the
offending part?
3. This occurred in the Guignard case.
iv. Reading In
1. Courts will only use this if it is easy to find a place to read in the excluded
category; courts dont like to do this otherwise as they are not always sure the
reading in would have been the choice of government
2. Involves adding words to the statute to make it constitutional
3. This was used in the Vriend case and in Sharpe
v. Reading Down
1. When a law is capable of more than one interpretation the court will give it the
interpretation that is constitutionally sound
2. This is the preferred remedy because they dont have to declare the law
unconstitutional
3. Example is the Sharpe case were the court upheld the child porn law but gave it
a reading that creates exceptions to the law which are private writings for
personal use that are not published and images that teenagers make of
themselves that they have consented to and dont show to anyone else.
vi. A Constitutional Exemption
1. Controversial law; no SCC cases yet have used this remedy
2. A law is generally valid but the court recognizes that it is capable of being
unconstitutional if it is applied in some circumstances; if such a bizarre case
comes forward where the person would be exempt from the law, that person is
declared to be exempt from the law
3. Problem with this is that it cases a pall over those that might be able to claim
protection and forces them to individually come to court to get an exemption
Section 24 - Used when there is nothing wrong with the statute but you are challenging some kind
of governmental action that you see as being unconstitutional in some way.
i. Declarations - Declaration that government has acted wrongly
ii. Injunction - An order not to do something; appropriate when you can point to a specific
act of government
iii. Damages
1. Money to compensate you for a loss you have sustained as a result of a
government breach of your right
2. Not often awarded;
iv. Stay of Proceedings
1. Example is right to trial within a reasonable period of time; 10 years ago the
court said you should have your trial within six months if you are charged with a
summary conviction, at the time the backlog in the courts was 18 months
2. Can also happen when someone is denied a right to counsel or where evidence
has been illegally obtained
v. Government to pay for a lawyer - Court has sometimes ordered the government to do
so usually in criminal cases but sometimes in a child protection case.
vi. Cost Award
1. Generally rule in civil cases is that the loser pays the costs of the winner; this
means that about half of your legal bills are paid
2. Sometimes court might award full award for solicitor where you pay the whole
lawyers bill as long as it is reasonable
3. In Doucet case there is an example of this; solicitor client costs were awarded
because the appellants were parents who, despite their numerous efforts, were

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consistently denied their Charter rights. The province failed to meet its
obligations to the appellant parents despite its clear awareness of the appellants
rights.

c. Rules:
i. Respect for the role of the legislature and the purpose of the Charter are twin
guiding principles in looking at any Charter remedy. (Schacter v. Canada, 1992 SCC)
ii. In determining whether severance or reading in is appropriate the following factors
should be looked at:
1. The court should not read in cases where there is no manner of extension which
flows with sufficient precision from the requirements of the Constitution.
2. Interference With the Legislative Objective
3. The degree to which a particular remedy intrudes into the legislative sphere can
only be determined by giving careful attention to the objective embodied in the
legislature
4. The Change in Significance of the Remaining Portion
a. Ask whether the significance of the part which would remain is
substantially changed when the offending part is excised.
5. The Significance of the Remaining Portion
a. If the remaining portion is very significant, or of a long standing nature,
it strengthens the assumption that it would have been enacted without
the impermissible portion
6. The court may temporarily suspend the declaration of invalidity where the
striking down of a provision poses a potential danger to the public or otherwise
threatens the rule of law, and in cases of underinclusiveness as opposed to cases
of overbreadth. (Schacter v. Canada)
7. When evaluating the appropriateness and justice of a potential remedy under s.
24 the court should consider the following principles:
a. An appropriate and just remedy in the circumstances of a Charter claim
is one that meaningfully vindicates the rights and freedoms of the
claimants.
b. A meaningful remedy must be relevant to the experience of the
claimant and address the circumstances in which the right was
infringed or denied
c. An appropriate and just remedy must employ means that are legitimate
within the framework of our constitutional democracy.
d. A court must strive to respect the relationships with and separation of
functions among the legislature, executive and judiciary
e. An appropriate and just remedy is a judicial one which vindicates the
right while invoking the function and powers of the court.
f. It is not appropriate for the court to leap into decisions and functions
for which its design and expertise are manifestly unsuited.
g. An appropriate and just remedy is one that, after ensuring the right of
the claimant is fully vindicated, is fair to the party against whom the
order is made.
h. The remedy should not impose substantial hardships that are unrelated
to securing the right
The judicial approach to remedies must remain flexible and responsive to the needs of a given case.
5. s. 33 the Notwithstanding clause
Exception where
express declaration

33.

(1) 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.

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a. S. 33 allows the federal or provincial government to state specifically in legislation that the
b.

c.
d.
e.
f.

legislation will operate notwithstanding the provisions of any or all of sections 2 and 7-15 of the
Constitution Act, 1982.
In a challenge to the use of the override clause, all the courts will look at is whether or not the
minimal requirements of form have been met. The courts will not look at the wisdom of the use of
the clause and will not require the legislature to state which sections are being overridden or which
sections of the act in question might violate the Charter.
If there is a clear intention of the leg. To use the Notwithstanding Clause the Court will not look
behind,
The Notwithstanding Clause is beyond the reach of the Court.
As long as it is expressed in the legislation
It cannot be retrospective

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