CHARTER FRAMEWORK

(1) Threshold Issues:

a. STANDING:
(1) Private Interest Standing: (Eldridge)
- MOST COMMON type of standing
- The government act/legislation DIRECTLY effects the claimant’s rights/freedoms
(2) Public Interest Standing: (Thorson / Borowski / McNeil)
- Organization that wants to bring a suit for benefit of the public (controversial) 3-part test
o Must be a serious issue, and
o Directly affected/genuine interest in the case, and
o Be a reasonable and effective manner of getting the case before the court (DESW)
§ ** Used to be that this had to be the ONLY way to get the case to court before DESW
(3) Collateral Standing: (Big M Drug Mart)
- In concurrence with civil/criminal proceedings
o Individual à if you are subject to a statute (meaning you are CHARGED, or able to be charged), then
you have an opening to challenge the statute
o Corporation à must actually be charged under statute to challenge it
(4) Intervener Standing:
- Law suit already going on, not full parties in the case; limitations to their involvement
- Court can grant leave to intervene on a case that someone else has initiated (you don’t have to meet all
the standards in Public interest Standing)
- i.e. government, NGO, individual

b. APPLICATION OF CHARTER:
à Section 33: 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
(1) Legislative Enactments
- Also applies in government actions based on common law (Dagenais)
(2) Government Actors by Nature
- Includes legislature, executive branches of government (Dolphin Delivery) à NOT judicial branch
- DOES NOT apply to court orders in private actions between private parties (Dolphin Delivery)
o However, court must interpret common law in keeping with Charter values
(3) Government Actors by Virtue of Legislative Control
- Includes other entities which are governmental in nature or over which government exercises routine and
regular control (McKinney, GVTA)
o i.e. colleges, airports, police, Crown agencies, transportation authorities (GVTA)
o Universities (McKinney) and Hospitals are not government actors (Eldridge)
(4) Bodies Exercising Statutory Authority
- Charter applies to bodies exercising statutory authority, powers of compulsion, acting in public interest, in
respect of those specific activities (Pridgen)
- CAN apply to universities as a part of their disciplinary proceedings in this way
(5) Non-Governmental Bodies Implementing Direct Governmental Objectives
- Charter applies to non-government actors implementing government policies or programs, in respect of
those specific activities (Eldridge)
o CAN apply to hospitals if they are proving a service based on government policy/program
à Charter applies to both ACTS and OMISSIONS of the government (Vriend)
à Section 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 s.2 or 7 to 15 of
this Charter
- Notwithstanding Clause allows laws to be insulated from certain challenges on Charter grounds
- Is only valid legislation for 5 years (sunset clause)
- In order to be used it must fit within 4 categories
(1) A form of political protest
(2) An exercise of risk aversion when constitutional uncertainty about how protected rights would be interpreted
(3) An exercise in risk aversion as a result of uncertainty about how s.1 arguments would be interpreted
(4) An expression of political disagreement with Supreme Court jurisprudence (i.e. interpretation of the Charter)

(2) Is there a Violation of a Protected Right/Freedom?

à Burden is on the CLAIMANT
à Consideration of sections 2(a), 2(b), 7, and 15 go here

a. WHAT IS THE SCOPE OF THE RIGHT?

- Generous, liberal, contextual, purposive interpretation (Hunter, Big M)
- The Charter (like the Constitution) is a living tree capable of growth (Hunter)

b. DOES THE LEGISLATION / GOVERNMENT ACTION VIOLATION RIGHT AS DEFINED?

- Either unconstitutional purpose or effect may violate rights (Big M)
o Have to look at the purpose and the effects of the legislation à look at purpose first, if there is a problem
here you never look to the effects (effects cannot save an invalid purpose)
o SCC has rejected “SHIFTING PURPOSE” because parliamentary intent at the time it was enacted is what is
important for purpose of legislation
- Violation must be more than trivial / insubstantial (Amselem)

(3) Can the Violation be Justified?

à Burden on GOVERNMENT
à A contextual approach should be used to consider the value of the right and the limitation in context of the
situation (Edmonton Journal)
- Nature of activity infringed
- Nature of social problem addressed by law
- Vulnerability of group protected
- Competing rights / interests
- Ability to measure the harm / conflicting evidence
à Contextual approach doesn’t reduce obligation of state to meet burden of demonstrating that limitation is
reasonable and justified (RJR-MacDonald)

à Section 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. IS THE LIMIT PRESCRIBED BY LAW?

- The limit can be imposed by legislation or common law (Therens, GVTA)
o Includes legislation, regulations, common law rules, municipal bylaws, collective agreements, policies that
are legislative rather than administrative
- Is the limit too vague, or sufficiently precise and accessible? (Irwin Toy, GVTA)
o Vagueness: it is not practical to seek absolute precision in statuteà requirement = intelligible standard
o A limit will be legislative in nature if it sets out general standards or norms that are intended to be binding
and is sufficiently accessible and precise
b. IS THE LIMIT DEMONSTRABLY JUSTIFIED AS REASONABLE IN A FREE AND DEMOCRATIC
SOCIETY? (Oakes)
(1) Is there a PRESSING AND SUBSTANTIAL legislative objective?
(2) Are the means reasonable and demonstrably justified? (proportionality test)
a. Measures adopted must be RATIONALLY CONNECTED to the objective
§ Needs to advance the purpose of the legislation through a logical link
§ Cannot be arbitrary, unfair, or irrational
b. Must be MINIMALLY IMPAIRING on right or freedom limited
§ Is there another means that impairs less
§ Does not need to be the least impairing, just needs to be reasonable (Irwin Toy)
§ VULNERABLE GROUP à government must only have reason to believe their actions were minimally
impairing
c. PROPORTIONALITY between the deleterious effects and the importance of the objective
§ Weigh the salutary effects against the deleterious effects (Dagenais)
§ Are the overall effects of the law on the claimants disproportionate to the government’s objective?
§ ** Most common place for legislation to fail

à Deference to Parliament by the court in the s.1 justification (Irwin Toy)

(1) Vulnerable groups = MORE deference as they are acting on behalf of a vulnerable group
(2) Singular Antagonist Case = LESS deference when dealing with liberty of an individual vs. government
Increased Deference:
- Administrative decisions (TWU); Expression outside core values (i.e. commercial speech, RJR-MacDonald);
Consideration of broad social issues (i.e. assisted death, Carter); Complex social policy (i.e. marriage, Quebec v. A);
Regulatory schemes (Hutterian Brethren)
- Also, when trying to balance limited resources OR weigh competing scientific evidence

à Depending on where the section 1 test fails the remedy sought will be different (Schachter)
- No pressing and substantial objective = STRIKE DOWN whole legislation
- No rational connection = STRIKE DOWN whole legislation
- No minimal impairment / proportionality = more flexibility, could STRIKE, SEVERE, READ DOWN, or READ IN

(4) What is the Appropriate Remedy?

à Usually is only one type of remedy or the other; BUT there are some cases that may be able to have a
combination remedy of both types (Ferguson)
à We need to have a variety of remedies for Charter cases because we are balancing the respect for the
charter and the respect for legislation (Schachter)
- Courts may consider: remedial precision, interference with legislative objective (budgetary impact), how the
remaining legislation is affected (“ripple” effect), and size of the group to be added

a. CHARTER REMEDIES:
à Section 24: 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
(1) Injunction = force the thing to stop immediately that is causing the violation
(2) Declaration = a judicial statement that it is recognized that your rights are being violated
(3) Monetary remedy = damages
à Applies to unconstitutional government actions
à Remedies must be “appropriate and just” (Doucet-Boudreau)
à Main goal of s.24 remedies are INDIVIDUAL remedies à focus is to compensate/correct a situation
- These are HIGHLY DISCRETIONARY remedies
b. CONSTITUTION ACT 1982 REMEDIES:
à Section 52: The Constitution 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, or no force or effect
(1) Strike down = whole statute is invalidated
(2) Severance = sever part of the legislation and strike it down (common remedy)
(3) Reading Down = reading out something as if it isn’t in the statute
(4) Reading In = when legislation is under-inclusive, reading something in as if it was there all along
- Controversial remedy
- When the group benefitting is larger than the group excluded – just extending coverage of rights
- Only applicable when;
(1) Legislative objective is clear and adding to it furthers the objective more than striking down
(2) Adding to legislation would not constitute an unacceptable intrusion into legislative domain
(3) Does not involve a budgetary decision such to change the nature of the legislative enterprise
(5) Constitutional Exemption = the law remains in force, but is declared inapplicable in the situation
- i.e. declaring claimant exempt from the Government Act/Action (Ferguson)
- RARELY applied
à Applies to unconstitutional laws (Schachter), same remedies as division of powers
- Remedy should be as non-invasive to the legislation as possible, only correct to extent of inconsistencies
- Based on where in the Oakes test the justification fails, will determine what remedy is appropriate
à Once the Court decides on remedy, can order temporary suspension of declaration of invalidity which delays the
effect of the finding of the invalidity so that government can amend the legislation
- If parliament has not fixed the legislation in the meantime, when the suspension is up the legislation automatically
becomes invalid
- Status quo continues until the suspension is up, but there is supposed to be good faith that the legislation is not
enforced during the suspension time
- Supposed to be used for economic reasons, not human rights cases (Charaoui – security certificates)

OTHER NOTES:
à The Charter and Constitution are the supreme law of Canada (Vriend), no one is above the law (Roncarelli)

à Accordingly, public officials (ministers) must follow the Charter, and their discretionary power must be
exercised in a manner consistent with Charter values (PHS)

à Even before the Charter was created in 1982 ministerial actions that were inconsistent rule-of-law and
Canadian values was seen as a gross misuse of power; government actors must act in good faith and with
integrity, in an un-arbitrary manner (Roncarelli)
SPECIFIC RIGHTS:
SECTION 2(a):
à Everyone has the following fundamental freedoms; (a) freedom of conscience and religion
1. SCOPE OF RIGHT:
FREEDOM OF RELIGION:
- Section 2(a) of Charter describes guarantee of freedom of conscience and religion as entailing the liberty
to hold, and live in accordance with, spiritual or other fundamental beliefs without state interference
- Section 2(a) Protects: (Big M)
(1) The freedom to practice religion without interference by the state (FREEDOM TO RELIGION)
(2) The freedom from state compulsion to follow a religious practice (FREEDOM FROM RELIGION)
o ** Subject only to limitations such as public safety, order, health, or morals, and the rights and
freedoms of others
(3) The freedom does not simply protect against state coercion in matters of religion or conscience,
it also requires that the state treat religious belief systems or communities in an equal or even-
handed manner i.e. requirement of state neutrality (Saguenay)
(4) Protects the freedom to worship NOT the spiritual focal point of worship (Ktunaxa)
o This is an EXTERNAL LIMITATION to the s.2(a) rights

FREEDOM OF CONSCIENCE:
- Was thought to be a part of Religion, but now recognized as an alternative to religious freedom
- While freedom of religion protects fundamental religious beliefs, freedom of conscience extends
protection to fundamental beliefs that are not part of a religious belief system, to non-spiritual morality
o Maurice: was an inmate in federal prison and having vegetarian meals for religious reasons, he
later stopped practicing his religion but wanted the vegetarian meals for conscience reasons; the
prison refused while the court held that they had to provide them

2. SECTION 2(A) TEST: (Amselem)

(1) Person must show a SINCERE RELIGIOUS BELIEF with a NEXUS (connection) TO RELIGION
à i.e. sincerely believes in order to connect with the divine or as a function of spiritual faith
person has to do this activity
- This is subjective and doesn’t have to be practiced by everyone; nor does it have to be obligatory
o The claimant can bring expert testimony as this would be evidence of what their religious
beliefs are, and showing that they are following the objective rules of the faith that they
subjectively believe in
o Respondent cannot bring expert testimony; this would be pitting the merits of religion
against itself in a secular court
- How to determine if there was a 'sincere belief':
o Look at credibility – do they do things that support that this is their subjective belief?
o Look if it is consistent with other practices of the person but not too far because people
can and do change
(2) Must show that the infringement is more than trivial and insubstantial in nature
- This is an objective standard (Ktunaxa)

à Traditionally VERY broad right, with NO internal limitation on the scope – Most cases decided in s.1
3. SECTION 1 CONSIDERATIONS:
- Multani:
o At minimal impairment stage…
o SCC stated that we should adopt a model of reasonable accommodation where the school must
accommodate the religious belief to the point of causing no undue hardship
§ Does not apply to regulation schemes (Hutterian Brethren)
o This is as Multani had offered to compromise and make the kirpan less ‘dangerous’, which the commission
denied, showing the complete ban was NOT minimally impairing to Multani’s religious rights

- Hutterian Brethren:
o On minimal impairment à in order for it to pass this part of the test the government must show that there
are no alternative less drastic means to achieve the objective
§ SCC decided that Reasonable Accommodation Model from Multani did not fit here because this is a
regulation scheme, in which case the strict s.1 test should be applied
o Court wanted to hear arguments on nature of right (i.e. individual vs. collective) à Subsequent cases have
concluded that there is a collective aspect to freedom of religion

- Ktunaxa:
o It’s NOT the state’s duty to protect the object of such beliefs (the spirit), rather it’s the states duty to protect
everyone's freedom to HOLD such beliefs and to manifest them in worship and practice
o EXTERNAL LIMITATION: s.2(a) protects the freedom to worship NOT the spiritual focal point of worship
§ An extension of s.2(a) in this manner would put deeply personal beliefs under judicial scrutiny – this
would require the state and its courts to assess the content and merits of religious beliefs

- Trinity Western University:

o When dealing with administrative decisions as opposed to judicial decisions, and looking at s.1 justification,
there is greater deference to the decision maker (i.e. court is more inclined to agree with decision maker)
o Step 3 (i.e. balancing effects) is the MOST common place for section 2(a) cases to be decided

4. OTHER CONSIDERATIONS:
- Big M Drug Mart:
o Court has rejected 'shifting purpose' because this was not the parliamentary intent at the time it was
enacted, and that is what is important for purpose of legislation
§ Cannot create a legal fiction about what the purpose is now vs. at enactment
§ This kind of argument may be considered DISINGENUOUS or COLORABLE

- Saguenay:
o Preamble; "Whereas Canada is founded upon principles that recognize the supremacy of God and rule of law"
o Interpreted as a political theory behind the structure of Canadian politics, not created to support faith, one
over others or in general at all
o "The reference to the supremacy of God in the Charter should not be construed so as to suggest one religion
is favored over another in Canada” à NOT meant to supersede section 2(a)
§ Further section 2(a) is the ONLY religious provision that must be followed

- Amselem:
o Religion: “defined broadly typically involves a particular and comprehensive system of faith and worship, also
involves the belief in a divine, superhuman or controlling power. In essence, freedom of religion is about
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 fulfilment, the practices of which allow individuals to
foster a connection with the divine or with the subject or object of that spiritual faith.”
o IN ORDER TO WAIVE A CHARTER RIGHT, the waiver must be:
§ (1) unconditional, (2) voluntary, (3) explicit
SECTION 2(b):
à Everyone has the following fundamental freedoms; (b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of communication

1. SCOPE OF RIGHT:
FREEDOM OF EXPRESSION: (Irwin Toy)
- Protects the CONTENT and the FORM of expression
- Expression is defined as ANYTHING THAT CONVEYS MEANING
o This is an extremely broad right with very little limitation
o As such s.2(b) cases are usually decided under s.1 analysis
- Unlike s.2(a) and s.7, corporations do have private interest standing to bring a s.2(b) Charter argument
- Charter will protect all expressions; unless it is taken out of protection by FORM (i.e. violence, or threat
of violence – Irwin Toy) or LOCATION (only public places protected – Montreal City)

CORE VALUES PROTECTED: (Keegstra)

(1) Truth; (2) Political and social participation; (3) Self-fulfilment
- These values are why we protect freedom of expression in Canada – cases will have different outcomes
based on how close the expression comes to these values
o The further away the expression in question is from the core values, the more easily justified
the infringement becomes, BUT do still need to justify it (RJR-MacDonald)
o Also, further from core usually means the court is more willing to use deference to legislature
§ i.e. commercial speech, hate speech, obscenities, noise
- Consideration of these values should come under section 1 justification because court did not want to
put limits on scope of section 2(b)

2. SECTION 2(B) TEST: (Irwin Toy)

(1) SCOPE à Does the expression in question fall within the scope of protection?
- Form: All content that is expressive / anything that conveys meaning
o With the exception of violence, and threats of violence (Khawaja)
- Location: Only expression carried out in public places is protected (Montreal City)
o To determine if the space qualifies for protection à look to the historical or actual
function of the place
o If historical or actual function of the place is NOT public then there is no protection
§ i.e. private offices in a public building are not a PUBLIC place
o Private property is only protected if there is state action on it

(2) INFRINGEMENT à Whether there is an infringement to this right, in either purpose of effect?
- Purpose: Where the purpose of government action/legislation is to restrict content by
singling out particular meanings not to be conveyed
- Effects: Where the government action/legislation is neutral as to content (i.e. not
expressly limiting expression), but has the outcome of limiting expression

à Traditionally VERY broad right, with NO internal limitation on the scope – Most cases decided in s.1

à Make sure to state that “the further from core values of freedom expression the impugned expression is, the more
easily justified the infringement is, however this will be expanded on in the section 1 analysis.
3. SECTION 1 CONSIDERATIONS:
- RJR-MacDonald:
o Consideration of the THREE CORE (truth, political participation, self-fulfillment) values should come under
section 1 justification so not to put limits on scope of section 2(b)
o Irwin Toy said commercial speech was easier to infringe upon because it is further from core values à this
is true, but do not get carried away with this

- Irwin Toy:
o Minimal Impairment: We are not going to tell parliament that they have to do the LEAST INTRUSIVE thing,
but just the least intrusive while still achieving objective
§ i.e. level of impairment just has to be reasonable
o When considering vulnerable populations à SCC said that parliament just needs to have reason to believe
that their means were minimally impairing, not that they are the absolute least impairing available

- Keegstra:
o Hate speech is protected under s.2(b) as it conveys meaning, however criminalization will be a justifiable
infringement to prevent harm to the individuals targeted and overall social harms
§ Hate speech is OUTSIDE the core values protected by s.2(b) so infringement is more easily justified
o SCC talked about not wanting a rigid section 1 test for s.2(b), need a flexible approach based on context
§ A blanket protection for expression could include things that may undermine the core values of
freedom of expression
§ i.e. hate vs. core values: (1) hate speech is often NOT TRUE, (2) undermines ability to be involved
in politics if you are targeted, (3) interferes with self-fulfillment of targeted people

- Whatcott:
o When looking at minimal impairment, focus on the effects of the impugned expression, not the
communicator’s intent

4. OTHER CONSIDERATIONS:
- Irwin Toy:
o When considering vulnerable populations à There will be more deference to parliament
o The further the speech is from one of these, the more easily it will be justified:
§ Promoting the free flow of ideas essential to political democracy and the functioning of
democratic institutions – participating in social and political ideas
§ Essential precondition for the search for truth; market place for ideas, contributes to richness of
society
§ Self-fulfillment: helps the realization of a person’s character and potentialities as a human being;
human dignity and allows people to express their deeply held beliefs

- Keegstra:
o DO not need to show evidence of damage, hate speech presumed to be damaging
§ Defense argued that criminalization of hate speech had no prove of actually preventing harm à
SCC said criminal laws can be preventative in nature
o Two injuries caused by hate propaganda:
§ Harm done to members of the target group – emotional damage caused by words may be of
grave psychological and social consequences
§ Influence upon society at large – people will believe almost anything if information or ideas are
communicated using the right technique and in the proper circumstance

- Whatcott:
o Hatred: extreme manifestations of the emotion described by the words, 'detestation' and 'vilification’
o TEST: “The question courts must ask, is whether a reasonable person, aware of the context and
circumstances surrounding the expression, would view it as exposing the protected group to hatred”
SECTION 7:
à 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

1. SCOPE OF RIGHT:
LIFE
- Serious threats to life by
preventing access to medical
care (PHS)
- Right to not be deprived of
life, and protection from
threat of premature death
(i.e. right to assisted suicide,
Carter)
- Imposing death penalty /OR/
extradition to a jurisdiction
that with capital punishment
- NARROW SCOPE
LIBERTY
- Applies at all stages of criminal
justice proceedings
- Freedom from physical restraint,
including imprisonment (BC MVA,
PHS)
- Ability to make decisions of
fundamental importance to oneself
(i.e. having children, Wilson in
Morgentaler)
- Choice to end life (Carter)
- Ability to make parenting decisions
(Children’s Aid Society)
- NARROW SCOPE
SECURITY OF PERSON
- Has been interpreted as
integrity of physical and
psychological self is protected
against government actions
(Morgentaler, Cater)
- Right to access medical
treatment (Morgentaler, PHS)
- Right to take steps to increase
safety of dangerous activities
(i.e. prostitution, Bedford)
- BROAD SCOPE

- BC MVA: Principles of Fundamental Justice is an INTERNAL LIMITATION, allows for infringement on rights
o A purposive approach (based on Big M) determines that the 'PFJ' are not the protected rights, they are
the qualifier to the right of life, liberty and security
o Serves to set the parameters of the interest, must not be interpreted to be too narrow as this would
make it easier to have the rights deprived
- Children’s Aid Society: Violation of that LIBERTY can be in accordance with PFJ if there is procedural fairness
o On one hand, liberty does not mean unconstrained freedom; on the other liberty does not mean mere
freedom from physical restraint à in a democratic society the individual must be left room for
AUTONOMY to make decisions that are of fundamental importance
- Section 7 and Section 15 have become tied up together because s.15 test is very complicated

2. SECTION 7 TEST: (Morgentaler)

(1) Did a government action violate the right to life OR liberty OR security of the person?
- Is a threshold question
- Action must have SUFFICIENT CAUSAL CONNECTION to violation (Bedford)
- Choice (i.e. to use drugs, or be involved in prostitution) does not negate causation (PHS, Bedford)
(2) Was the violation inconsistent with the Principles of Fundamental Justice?
- Will NOT be consistent with PFJ if there is 1 or more… (PHS)
o Arbitrariness à Asks whether there is a direct connection between the purpose of the law
and the impugned effect on the individual
§ Look at (1) OBJECTIVE of law, and a (2) RATIONAL CONNECTION to limitation on s.7 right
o Gross Disproportionality àLaws are in violation when the effect of the laws are
disproportionate to the state’s objectives
§ “state actions of legitimate responses to a problem that is so extreme that it has a negative
effect on the population” (Malmo-Levine)
o Over Breadth à Law that is so broad in scope that it includes some conduct that bears no
relation to its purpose, captures too much
à It is rare that if something is not found to be consistent with PFJ that it can be saved by s.1 – BUT must do analysis
à Not recognized to be a positive right, but the door is open to try to argue (Gosselin)
3. SECTION 1 CONSIDERATIONS:
- Carter:
o If something is not consistent with PFJ it will RARELY be saved by a section 1 analysis, BUT they are
different analysis asking different questions so must do both regardless
o Section 1 can be an important place for consideration of boarder social interests
o i.e. where the public good justifies the deprivation, or where societal balance required needs a greater
level of deference

- Bedford:
o Focus of section 7 PFJ analysis is on the INDIVIDUAL not the society
o Whereas section 1 analysis focuses on SOCIETY not the individual

4. OTHER CONSIDERATIONS:
- Malmo Lavine:
o PFJ: “a legal principle about which there is significant societal consensus that it is fundamental to the
way in which the legal system ought fairly to operate, and it must be identified with sufficient
precision to yield a manageable standard against which to measure deprivations of life, liberty,
security of the person”

- Morgentaler:
o Parliament can impose procedures for the operation of a criminal provision/defense, but cannot do
so in a way that offends PFJ (i.e. creating unreasonable barriers to access defense)
o i.e. create an exemption framework for abortion which has procedure so manifestly unfair, with so
many barriers to its own operation that it offends PFJ

- Carter:
o Trial courts may reconsider settled rulings of higher courts in two situations:
§ (1) Where a new legal issue is raised
§ (2) Where there is a change in the circumstances or evidence that fundamentally shifts the
parameters of the debate
o i.e. in Carter:
§ (1) This case was brought on different fundamental principles than Rodriguez (good lawyer
in coming up with a new way to frame the issue)
§ (2) The political climate about medially assisted dying had changed, many countries had
now started allowing it
o There will be more deference in cases where there is a complex regulatory regime (i.e. assisted
dying)

- Gosselin:
o Nothing in s.7 places a positive obligation on the state to ensure that each person enjoys life, liberty
or security of the person
o Section 7 has been interpreted as restricting the state’s ability to deprive people of these rights
o It is possible to have a new reading of section 7 (living tree) – therefore positive rights would be a
new reading à Just wasn’t supported by the evidence presented in the Gosselin case
SECTION 15:
à (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.
à (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 race, national or ethnic origin, colour, religion, sex, age or mental or physical
disability.

1. SCOPE OF RIGHT:
- The focus on substantive equality not formal equality
o SUBSTANTIVE EQUALITY is based on equal outcomes (unequal treatment may be required for this)
o Whereas FORMAL EQUALITY is based on equal treatment only
- The enumerated grounds is not an exhaustive list; can also argue for something to be an analogous
- To be ANALOGOUS must be (1) immutable characteristics (i.e. beyond control of the individual / not easily
changed) and (2) aspect of historical discrimination / disadvantage based on this characteristic (Cobiere)
(1) Citizenship (Andrews)
(2) Sexual Orientations (Egan)
(3) Marital Status (Miron / Quebec v. A)
(4) Aboriginal Status + Residency on Reserve (Cobiere)
- Once something is recognized as analogous it is considered analogous forever (Cobiere), and vice versa if
something is not found to be an analogous ground (unless it can be distinguished and re-argued)
o NOT recognized as analogous grounds:
(1) Employment status, (2) Occupation (in terms of an agricultural work), (3) Province or Municipality of
residence, (4) Marijuana users i.e. lifestyle choices (Malmo Lavine), (5) Language, (6)Manner of conception,
(7) Poverty (but this could be challenged, as there is historical discrimination)

2. SECTION 15 TEST: (Andrews / Kapp)

(1) Section 15(1): Is there a distinction created based on enumerated or analogous grounds?
o Burden on CLAIMANT
o Distinction can be through the PURPOSE or as an ADVERSE EFFECT (Eldridge)

(2) Section 15(2): Is it part of an ameliorative program? (Kapp)

o Burden on GOVERNMENT
§ Focus ONLY on object/purpose of the program (not the effects)
o A program DOES NOT violate the s.15 if government can demonstrate that
(1) The program has an ameliorative or remedial purpose (doesn’t have to be only purpose)
(2) The program targets disadvantaged group identified by the enumerated/analogous grounds
o This is a VERY STRONG argument for the Crown, there can be outright discrimination against
another group through adverse effects, but an ameliorative programs saves it (Cunningham)
à If there is a valid ameliorative program, there is NO section 15 violation, analysis stops here

(3) Section 15(1): Does the distinction create and arbitrary / discriminatory disadvantage?
o Burden on CLAIMANT
o The Kapp formulation used to say, “does the distinction create a disadvantage that perpetuates
prejudice and stereotyping?” BUT now stated as “arbitrary disadvantage” which includes but is not
limited to prejudice and stereotyping (Quebec v. A / Taypotot)
o Four factors from Law relevant here à Could talk about effect on human dignity
3. SECTION 1 CONSIDERATIONS:
- Discrimination is very hard to justify; however, it is possibly that a section 15 violation could be saved by
section 1 so must still do the analysis (Quebec v. A)

4. OTHER CONSIDERATIONS:
- Discrimination = a distinction, whether intentional or not, based on grounds relating to personal
characteristics of the individual or group, which has the effect of imposing burdens, obligations, or
disadvantages on such individual or group not imposed upon others, or which withholds or limits access to
opportunities, benefits, and advantages available to other members of society

- Section 15 applies to all persons whether citizens or not – Provision states ‘every individual’

- Section 15 came into effect 3 years later than the rest of the Charter in order to give time for government to
update laws to make sure they followed the equality rights

- Kahkewistahaw First Nation v. Taypotat [2015]:

o Legally important because Abella J. had the majority here and reiterated the test from Quebec v. A

- Eldridge:
o There was an attempt to make this about a 'positive right' and the court turned this around and said
the right to equal access to medical services was being withheld rather than there being a right to
getting this service as a benefit
o Once a state provides a benefit, it has to do it in a non-discriminatory manner – and sometimes this
will require them to take positive action