FOEs.

2(b): Everyone has the followng fund freedms: Frd of thought, belief, opinion and expression, including freedom of the
press &other media of comm.
IT: challenge by toy manu against QC law that prohibits advertisements to be directed at children below a certain age.
Commercial speech = is protected by Charter. BUT saved by s.1  deference to the legislature
Keegstra: teacher in Alb using hate speech in classes; fired from job. There are 3 VALUES that speak to FOE: demo pol
participation, market ideas, personal self-fulfillment violated s. 2(b), NS by s.1
Ford: consti of language restrictions wrt s. 2(b) during time b/w CA82 coming into force and s. 33 bill being passed. Choice of
lang = closely linked w/ express content
RJR: Tobacco ad band and req of unattributed health warning. S. 2(b) includes right to be SILENT. Gove must still make effort
to argue under Oakes.
Thompson: Challenge to Elections Act wrt ban on publication of poll results in days b/f election. Look @ nature of legs and
nature of activity to inform Oakes Test normal O
Committee for Commonwealth: political pamphlets in airport. Public Space test: Functional v. Underlying Values
Montreal: strip club that blasts music & commentary onto street in contravention of noise bylaw. Func & Underlying values test
should be MERGED
STEP 1: Issue + Does charter apply
State the Issue : (ex) Does a stautory provision found in [section] which [what it does] violate FOE s.2(b)?(1)(a) Does the
act of [X] constitute “expression” under s. 2(b)? (1)(b) Does Charter apply in this location? (see other chart) (1)(c)Does the
[provision] which prohibits [act]violate FOE?  can provision be saved by s. 1?
Is it a violation of the Charter Section 2b? BOP on Claimant to SHOW VIOLATION ON BALANCE OF
PROBABILITIES
1(a) Does the act of [insert action] constitute “expression” under s. 2(b)?
NOTE: RJR - tobac co. argued that 2 provisions violated 2(b)  1) ban on ads 2) unattributed warnings.. Maj:1) Yes
violation, but not min impairng:.not saved 2) yes violation: RIGHT TO BE SILENT! Dissent: 1) yes violation & would be
saved, 2) no violation b/c RP wld not attribute to cigco.
Argument for Claimants (Inclusive Test):
RULE: As set out in Irwin, the right to FOE should be given a broad expression (Inclusive Approach). IT involved legislation
that was directed at restricting a particular content – advertisements directed at children was challenged. Yes it violated 2(b)
but was saved by s.1 POLICY
Content: Any activity that attempts to convey meaning is expression. Apply! (message)
Form: Protects any form of expression other than violence, i.e. even THREATS of violence are protected. Apply! (verbal,
visual, language, art, dancing)
…Language is closely related to form and content of expression (Ford) :. b/w use of CA82 and use of s.33, vio of 2(b) b/c of
lang laws req French only signs.
 Relatively trivial acts, which are subj to draconian legislation, will, get the full charter review, from stage one all the way
to the end
Argument for Government (Selective Test):
Argue that IT was wrongly decided! Should be more selective. Gov’t will argue that only CERTAIN kinds of expression
should be covered. Screen out cases (ie. those causing grave social ill) and give deference to democratically elected
parliament by reviewing prior to s.1 Oakes (crt power should be exercised carefully b/c we value the tradition of our demo
system). Use Keegstra Values (below), apply these to the expression to see if they’re worth protecting (dissent in Keegstra,
Dickson in IT) (ex) Is (action) political discourse, marketplace of ideas, personal fulfillment Apply!  critique of
Marketplace: no guarantee that it will lead to truth!!! POLICY
Could argue that 2b was intended to remain within the POLITICAL SPHERE… broad scope trivializes the Charter ex. do
we want Charter dealing with squeegee kids?
Counterargument for Claimants (argument for FOE is very important! Don’t want a chillng effect(McL) if only poli X
staying with IT) was covered
: societies where FOE is not protectd (affects truth and H creativity) rplcd w/ propaganda…scientific/artistic might stagnate
“Free expression is an end in itself, a value essential to the sort of society we wish to preserve” (Keegstra) “FEO is seen as
worth preserving for its own intrinsic value”
Resolve this ISSUE! Add Policy
1(b) Does the Charter apply in this Location? Look at NATURE and USE – (Committee for the Commonwealth of Can)
Private Locations- Charter doesn’t apply. General rule: no FOE in private property. Charter might apply if dealing w/ govt
(considerations: rgt of access, rgt to exclude)
Public Locations – Charter might apply. Montreal City (Amalgamates Committee for the Commonwealth Decisions)*
 Functional Test (Lamer)- Function or Purpose Values Test (McLachlin) – Function is inadequate on its own, should
of property in Q approach matter by looking at interests at stake and asking these additional
a. Is the trad use of the PS amnabl to the questions:
activity? a. Wld the exercis of free expres in the PS support/undermine values that
b. As matter of comn pract this what the spce is supprt FOE grnte?
used for? b. Would denying expres in this loca support or undermine the values that
c. Is it expected that expres acts would take support the FOE guarantee?
place here?
*Montreal: Func + Values: “expression in a public place is protected only where the function of that space is associated with
the expression activity and where exercise of free expression in that space is compatible with the underlying values of s. 2(b)”
Resolve this ISSUE! Add Policy
1(c) Does the provision violate 2b (FOE) in PURPOSE or EFFECT? (Irwin)
PURPOSE is to restrict expression (content restriction): any restriction EFFECT (content-neutral restriction): provision
of expression by this type of legs is automatically a violation of the is directed at some other nuisance (time, place,
Charter right.  Onus on government to prove restriction is justified  manner) but has the effect of restricting
this will rarely be the case.. usually EFFECTS Attempts to distinguish expression.  Onus on claimant to show that
b/w legislation that is in some way focused on CONTENT of the expression (which was restricted) was connected
expressive act, as distinct from things such as the FORM of expression to one of the 3 values from Keegstra.
that are NOT tied to content
1. Political Discourse: In a demo society it is critical that there be free and open exchange of ideas and opinions of political and
social matters. Freedom of speech is important because it ensures the chance to voice your political beliefs, and hear other
political opinions are not abridged.
2. Marketplace of Ideas: Following a Hegelian approach, the pursuit of absolute truth is best served in something of a
dialectical process = a marketplace of ideas. Free speech is important because it ensures that ideas can flow freely, and help
us attain truth. Milton: “And though all the winds of doctrine were let loose to play upon the easth, so Truth be in the field,
we do injuriously by licensing & prohibiting to misdoubt her Strength. Let her & falsehood grapple; whoever knew Truth put
to the worse in a free and open encounter? …McL: “that is promotes a marketplace of ideas” and hence a more relevant,
vibrant and progressive society”
3. Personal Fulfillment: The interest of growing as a human being and as a member of society if best served if everyone is free
to express themselves fully
T.I. Emerson: “for expression is an intergral part of the development of ideas, of mental exploration and of the affirmation of
self”
Argument for Claimants: eg. by singling out certain forms of meaning that aren’t to be conveyed  affecting FOE (form)
Argument for Gov’t: eg. this is a form of ‘nuisance legislation’, ‘safety provision’  not focusng on contnt, just certain
knds of nuisances (intimidating)
Counterargument: eg. if purpose is to prevent dangers.. why doesn’t provision say that?? Why does it single out [act]? It’s
targeting a kind of meaning
Resolve: is there an infringement in purpose of effect?
STAGE 4: Modified 2(b) Oakes Test- Can the violation be justified as a reasonable limit under s.1? BOP on govt to
show that limit is justifiable
Because the protection of 2(b) is so broad, it needs to be easier for Gov to justify limit (IT, RJR dissent): BUT govt must still
make some effort to argue!
a & b inform crt how to proceed with Oakes  loose vs. strict??  lots of deference = loose Oakes (easier to justify
limit on FOE)
a. What is the nature of the legislation and what deference is owed to the legislature? Crts must be cautious re: subst
their opinion for that of the legislature
i. Time, place, and manner restrictions are by nature content neutral and greater deference is afforded to parliament in those
cases.
ii. Is the legislation attempting to balance competing interest and values? Thomson: speech connected to political discourse.
No attmpt to pro vul grps, no SS :.normal Oakes
iii. Is the legislature attempting to make decisions based on complex social science information?  need only be resonabl
when drawing lines (IT)
iv. Is the legislature attempting to protect a particularly vulnerable group?
b. What is the nature of the expressive activity? Is it closely connected the values outlined in Keegstra? expand here by
saying if its closely connected to the values, less deference to parliament (Establish context – If the expression is close to
 the underlying values of FOE then the deference to parliament is lowered (strict test). If it’s further removed, then you
defer more to parliament. )  Is it destructive of these values?
c. Is the provision a pressing and substantial objective (or at least worthwhile)? Objective is difficult to ascertain,
always open to debate. This affects rational connection stage. Look at: Intended effect (most significant), Preamble (not
definitive), Legislative Intent (including Hanssard- transcripts from legislature), Context of the surrounding provisions,
Language of the provision itself (purpose, probable effects). Look to the effects for an indication of what the legislature
presumably intended (for the objective).
d. Proportionality test: the means chosen to reach objective must be reasonable and demonstrably justified.
i. Rational Connection: B/w the actual obj (determined from (c) above) and the means [impugned prov](can’t be
arbitrary, unfair or basd on irrationl considerations)
ii. Minimal Impairment- Test: Does the provision minimally impair the right in question? Deference plays a major role
here.
iii. Salutary v. Deleterious Effects Dagenais

Life, Liberty, Security of the Person - Section 7

Everyone has the right in life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of FJ
Charkaoui: (security certificates): scheme allowed ministers to deport ppl on basis of certain confidential info that was
not to be disclosed to person in Q nor anyone acting in their interest (here violated fair procedure and not min.
impairing)  vio. S. 7, NS by s. 1
Gosselin: (welfare schemes): under 30 got less $ if they didn’t participate in govt programs  s. 7 used to restrain govnt
from positively infringing on ppl’s LLSP rather than requiring govts to actively do things that would provide a certain level
supporting ppl’s LLSP  no vio of s.7; s. 7 traditioanlly for admin of justice and negative way BUT might use s. 7 outside of
this category on a case-by-case basis
Chaoulli: (health care): s. 7 applied outside admin of justice  law = arbitrary: violated right to L + SP, NS by s. 1
STEP 1: Issue + Does charter apply
State the Issue (does the provision violate the Charter)? Does the Charter apply? (refer to other chart)
Issue: (ex) 1. Is the definition of [x] in section [x] in violation of the principles of FJ in s. 7 b/c they are (a) too vague (b)
overly broad ?
2. Can the impugned provision be saved by s. 1?
STEP 2: Is it a violation of the Charter Section 7?
NOTE: s.7 requires a violation of LLSP and a deprivation thereof! (cannot just talk about FJ separately)
Nature of the Right: There are two potential ways to construct the guarantee under s.7 (Gosselin)
Single Right Theory: The section is read as a Dual Right Theory: the wording has an “and” in it, giving you both the
whole, and provides a single right. It is right right listed above, and the right to LLSP. This must be a positive right,
not to be deprived of LLSP except in imposing positive obligations of the state to ensure your have LLSP, just
accordance with the principles of fundamental like they have positive obligations with respect to s.3 or in cases like
justice. This is a negative right, and only Dunmore or Vriend.  Slattery: stronger argument
activities when the government does something Counterargument: govts have many obligations, they need to have leeway
to deprive you of your right. to where to allocate their $$
(ex) Does your economic need to pay for food constitute something falling under your right to LLSP?
- Can argue NO, based on fact that s.7 falls into the section - Can argue YES, provisions should be interpreted broadly
entitled “political rights” and that ss.8-14 are all non-economic
rights
SCC: Remains ambiguous, rejected arguments that s. 7 involved economic rights in the past + have never used it to
impose positive obligation on state. ∴ CASE-BY-CASE basis *potentially COULD be used to impose a positive
obligation on the state
The principles of FJ (est. on case-by-case basis) tell the court/ legislature when deprivations of LLSP are permissible,
or are not permissible.
 if deprived of LLSP and it’s NOT in accordance with FJ..eg. it IS arbitrary, then that means it violates s. 7… move
to Oakes
FJ (must be a legal principle, must be sufficiently clear & precise, must be sufficient societal consensus that principle is
fundamental) (Malmo)
1. Laws may not be arbitrary (Chaoulli): there may be no law where its provisions are entirely unrelated to the underlying
purposes that inform it.  this is almost identical to Rational Connection
2. Where person faces detention they must have procedural fairness/right to fair trial (Charkaoui) 1. A right to a
hearing, 2. A hearing before an independent and impartial tribunal, 3. A decision before a magistrate on the facts and on the
law, 4. Right of the person in question to know the case put against them, and the right to respond *similar to Charter Section
11(b)
3. Innocent should not be punished (Motor Vehicle)
NOTE: Absolute liability ALWAYS violates principles of FJ and if liberty is threatened = violation of s. 7
Example of Provision violating principle of FJ (Arbitrariness) b/c it is (a) too vague and (b) overly broad
Claimant’s Argument:
Vagueness Over Breadth
Not sufficiently precise – could mean a large range of things Covers too much. When the scope of provision goes way
Legal provisions should be sufficiently clear so that citizens beyond underlying rationale  no rational connection.
know when and if their behaviour is in violation of the law. Vaillancourt: murder was defined in a way that allowed for an
Guidance to citizens. objective MR. Lamer – given the seriousness of murder, it
Gosselin  gives law enforcements too much discretion. carries a heavy penalty and stigma. Provisions ought not be
Leads to arbitrary enforcement. Discretion might result in overly broad in the sense that they include conducts which are
discrimination, be exercised inappropriately. not really of the kind that this offense merits.
Government’s Response:
Vagueness Over Breadth
Every law has to allow for some discretion. Impossible for Argue for judicial deference. Considering the seriousness of
law to lay out in great detail every instance where the law the offense and the consequences of the act, allows for a broad
might apply. It uses general language that must be definition. The max penalty is reserved for the most serious
interpreted by the courts. Admittedly, generality can go too instances of a crime. To give a court the discretion to award
far, but this language doesn’t. Must be sufficiently flexible minimal penalties for less serious instances. In practice, when
to apply in the future to circs that might arise. It’s general, it comes to court actually applying, it will narrow it – read it
but not too vague. down.
Applications of S.7 may occur outside of the administration of justice area (healthcare, education, anything federal),
but this must be established on a case-by-case basis. (Chaoulli)
OAKES following SECTION 7
Because s.7 has a limit in the form of “fundamental justice” reference, any attempt to save a full violation of the section under
s.1 would be very difficult. It would need something as extreme and temporary as war, plague, or natural disaster
(Motor Vehicle)
Issues of national security are only considered in s.1, and even then, violations of LLSP cannot be easily justified under the
Oakes test (Charkaoui).
Policy Keep the courts thinking when looking at s.7 is assessing relative institutional competence, when dealing with
matters closely connected to the administration of justice (reasonable search & seizure, trial, punishment), courts feel quite
competent. (:. Oakes applied strictly  hard to justify violation)
Oakes
1. Is the provision a pressing and substantial objective (or at least worthwhile)?
2. Proportionality test
iv. Rational Connection: B/w the actual obj (determined from (c) above) and the means (can’t be arbitrary, unfair or basd
on irrationl considerations)
v. Minimal Impairment- Test: Does the provision minimally impair the right in question? Deference plays a major role
here.
vi. Salutary v. Deleterious Effects
 Section 15 (1) – Equality Rights
Every individual is equal before &under the law and has the right to the equal protection &equal benefit of the law without
discrimination &, in particular, w/o discrim. based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
Andrews: P is non-citz who meets req for admin to Bar. Non-citz=A ground. Vio s.15, NS by s.1
Ref re valid: act estd public insurance that barred injured workers from making tort clms for injuries on job. Employ status ≠
A ground
Turpin: T charged w/ murder. Wants trial by judge alone. In Alb may opt for this. Province of charge ≠ A ground
Hess/Nguyen: D’s charged w/ rape. Biological differences b/w men and women ≠ A ground
Weatherall: P is inmate. Argues that females guards that can search males but not vice versa is dicrim. Social realities ≠ A
ground
Law: P’s husband dies when she is 30yrs, CPP only kicks in for smone 35yrs+. She gets no recovery based on new LAW
TEST yes age is E but doesn’t affect HumDig
Mv H: M & H LT same sex rln. M wants support. Argues FLA’s def of spouse is discrim. FLA violates s. 15  read up to
incl sm sex
Corbiere: P member of Indian band, living off reserve. Barred from voting in band elects. Aboriginal/Residency = A ground
Vio. S. 15, NS by s.1
BCGSEU: B.C. passed stnd for firefighters. Most women don’t pass test. Universal standard = adverse effect discrim against
women, NS by s. 1  bona fide job req?
Lavoie: P brings action against fed govt over policy favouring Canadian citz. S. 15 vio, but saved by s.1  once A, always A!
Aristotle Definition of Equality: the core of discrimination is that benefits and burdens are distributed unequally between
people who are equal, or equally between people who are unequal. The former is the traditional view of discrimination and
the latter is adverse discrimination.
Broad: Simple Differentiation (Hogg) Narrow: Unreasonable Differentiation (McLachlin)Rejected
Any time the law makes a distinction in distribution of Broad POV because every law would be treated as having violated
benefits and burdens b/w identifiable groups there is a s.15.Discrimination should be understood as meaning
violation of s. 15 differentiation meaning unjust differentiation.
Critique- Broad: Too much power in the hands of Critique- Narrow: Very little left do at stage 2 when you apply
judge the Oakes test (hard to justify violation)
- laws by their very nature are about distribution of Burden on P: much greater – must demonstrate that there has
benefits and burdens; would be required to review been an unjust distribution of benefits or burdens similar to s. 7
every law  Would Trivialize s.15 if all laws are
tested. - Relies heavily on Oakes (easier to justify
violation - diluted)
Burden on P: slight, almost nonexistent  Similar to Critique of BOTH: they force the courts to judge
s. 2(b) reasonableness…there’s no filtering out of claims.. this is what
Andrews addresses
Andrews adopts Unreasonable Differentiation (screens at stage1 before one gets to reasonableness of the law under
attack)
- Adds requirement that it has to be personal characteristic that is an ENUMERATED or ANALOGOUS ground (McIntyre
for Majority)
- Doesn’t discuss what A would be, but it would be ppl susceptible to being singled out for adverse treatment (discrete and
insular minority)
Minority Judgment Andrews: - Argued that Oakes test in context of s.15 should not be applied as stringently as originally
formulated, were saying it shouldn’t be so mechanical… There should be a lower standard that does not put as high a
burden on the government (easier to save)
Law Test was estd in Andrews and built on in Law (meant to limit challenges to those instances where provs engage
underlying purpose of s. 15)
1. Is there a distinc made b/w groups based on personal characteristics, upon which bens & burdens are distriuted,
either in purpose or effect?
Normal Grid Layout Adverse Impacts Grid: Provision is facially neutral but actually has
Universe of Discourse: [what is the overall differential impact  for CLAIMANT!
grp that defines this issue] (ex)Citz of Can Universe of Discourse: [what is the overall group that defines this issue]
w/ non citz children (ex) Citizens of Canada w/non citizen children 22 yrs or older living abroad
Group 1/2: [differentially impacted groups. Provision: Relates to the situation of the complainant, what the provision
G1+G2 must exhaust UD, and mutually does to the complainant (ex) Permits sponsorship of children in post-
exclusive] (ex) those with children younger secondary institutions
than 22yrs/ those with children over 22yrs Group 1/2: [differentially impacted groups. G1+G2 must exhaust UD, and
Ground of Differentiation: [description of mutually exclusive] (ex) Those w/ financial ability to support children’s
how G1 and G2 is divided] (ex)age*of post-secondary edu/Those w/o
children.. will affect analysis b/c NOT Ground of Differentiation: [description of how G1 and G2 is divided] (ex)
personl Socio-economic Status
Benefit/Burden on 1/2: [describes the Benefit/Burden on 1/2: [describes the actual impact] (ex) General Ability to
actual impact](ex) can sponsor/cannot sport Sponsor child for immigration purposes, compared to a restrictive right to
for imm do so ***
***BCGSEU: if provision/req is a bona fide occupational req and if standard is reasonably supported then differential
impact MAY be acceptable
Example of ISSUE: Does an issue of Immigration regulations violate s. 15(1) where:
With respect to Can citz with non-citz living abroad, it diffs b/w those with children under 22 yrs and those with children
over 22yrs AND
Awards to those in the 1st group a general right to sponsor child for immigration purposes but gives much more restricted
right to those in the 2 group.
2. Is the ground of distinction either an enumerated or analogous ground?
Recognized Analogous Grounds: Sexual Orientation (M v. H), Residency in the context of being aboriginal (Corbiere),
Marital Status
Rejected Analogous Grounds: Location of Charge (Turpin), Employment Status (Ref re: Validity of Sections 32 and 34 of
the Worker’s Comp Act)
Reasons why something MAY be analogous: Immutable or constructively immutable (Corbiere, McL), On a modified-
objective view, the characteristic viewed as fundamental to sense of self (Corbiere, LHD), Characteristic goes towards a
group that is historically disadvantaged (Corbiere, LHD), The characteristic is recognized somewhere else, like an HRC
(Corbiere, LHD) LHD  says A grounds are contextual; it collapses the search for A ground in stage 2 with Q of human
dignity in Stage 3.
McL: E grounds are legs signposts that identify suspect grounds of differentiation. A grounds are merely new suspect
grounds.
Analogous grounds, once found, are PERMENANT, but may be defined in a very specific way (Corbiere, McL)  but
this may only extend to a subclass (place of residency for aboriginals)
3. a) Does the differential treatment constitute substantive discrimination that offends human dignity and reach the
level of HR concern?
What amounts to assault on human dignity? Below are contextual factors, neither necessary, nor sufficient (Law) 
Group suffers previous discrimination, there is a lack of connection between grounds of differentiation and the benefit or
burden being distributed (the differentiation is irrational),there is no overriding ameliorative purpose to the legislation,
More important nature/scope of the right = more likely to be a violation  similar to Oakes Salutary v. Deleterious
Reasons not to find that human dignity violated: Biological Realities (Hess, Nguyen), Social Realities (Weatherall),
3. b) . Look at these contextual factors are useful in structuring the inquiry into whether dignity has been violated
through discrim (Law)
i. Pre-Existing Disadvantage/historical disadvantage
 Stereotyping is influential in Law but there’s a real tension here, as evinced by the fact that this might suggest that legs
can never make broad policies based on sociological generalizations. The tension is further emphasized by the fact that the
court itself takes judicial notice of the “fact” that it’s easier for younger people to find jobs. Isn’t this a contradiction?
 Turpin comes close to suggesting that a group that hitherto had not suffered discrimination could, nevertheless, be
subject to discrimination
ii Relationship b/w the E or A ground and the nature of the differential treatmentsome E/A correspond w/ actual needs,
capacities, circs ex. Disabled
iii Ameliorative purpose of effects of legislation  Was the legislation really meant to benefit someone less advantaged
than the P? if yes :. Won’t violate human dignity
iv. Nature of the interest impacted by the impugned law?  more important ben being denied/heavier burden :. More likely
to violate human dignity
OAKES following LAW
Similar to s. 7, under Law test it would appear diff. to find a s. 1 justification for a s. 15 violation outside of a temporary and
extreme situation  must have found that a differential treatment directly attacks human dig and worth of a person who is
being denied a ben/burden imposed. Oakes = little def to parl @ that point.  NB stage 3 of Law Test takes into account
things like Rational Connection of ground and treatment & various cost/ben calcs
Does the Charter Apply? Section 32
S. 32 states that the Charter applies to the parlia and govt of Canada and to the legis and govt of the Provinces (this reigns in s.
52 which states that any law inconsistent w/ Charter is of no force and effect). According to DD, the Charter only applies to
statutes and the CL if it is the basis of government action. DD was concerned about the possible impact of any ruling of s. 32
allowing for the Charter to apply to relations of private individuals. However, case law has subsequently modified the
application of s. 32 to situations between private individuals.
GOVERNMENT ACTION
Issue: (ex)Does the Charter apply to a citz making an arrest of another private citz under [section] that allows for citz arrest
in certain circumstances?
YES The Charter Applies to these “private individuals”! (Claimant’s argument)
1. Statute
The relations between a private citizen [doing X] and the private party [doing X] are governed by statute [name statute]
and therefore the Charter applies (DD – Obiter). RULE: although relations b/w private parties governed by the CL are not
governed by Charter, where those relations are governed by statute, they are governed by the Charter. Apply to case!
2. Entities that are “governmental in themselves”  Everything is Charter Reviewable
(a) Entities that are essentially governmental in nature because of the governmental quality of their functions (Godbout)
RULE: municipalities are subject to the Charter because they are a democratic institution, empowered by provincial statute,
can pass their own laws and have taxing powers. Apply!
(b) There is a significant degree of government control over their activities (Godbout), entities that are part of the apparatus
of government (Douglas) RULE: A College is governmental where it has all 7 of its board members appointed, the minister
has to approve all bylaws, gov’t provides 83% of funding and the enabling statute says that the college is a Crown agent (gov’t
b.c of degree of control NOT functions).Apply!
P The government cannot do indirectly what it cannot do directly; would be absurd.
3. Entities that are not “gov’t” in themselves, but that perform part. acts that qualifies as govntonly function itself
Charter reviewable
(a) A citizen [doing X] is exercising a POWER* delegated by the state. (ex- granted by statute) (Slaight) RULE:
adjudicators and tribunals are subject to the Charter when exercising coercive powers conferred by statute. (=where an entity is
given powers to issue binding powers, that coercive power is subject to the Charter)Apply! *Powers were quasi-judicial
determined by 1) Ability to make binding orders, hence governmental P The problem is, would this make the court
subject to charter review since they make judicial decisions, but maybe act makes difference, but courts normally not
gov’t.
(b) A citizen [doing X] is implementing a specific governmental policy (ie. health care) (Eldridge). RULE: where a private
hospital is facilitating a program (medical services) which was initiated and governed by the government, then the actions of
the hospital are subject to the Charter. Apply!
(c) A citizen [doing X] is acting as a state agent*CASE-BY-CASE basis (Broyles). RULE: where a citizen is given specific
instructions by the govt to interrogate an accused or prisoner, w/o informing them, they are/may be acting as a state agent.
Therefore their activities are subject to the Charter. Apply!
NO the Charter does not apply to these “private individuals” (Government’s argument)
(a)When regular control rests with [name institution], the Charter does not apply in spite of the extraordinary government
control (Stoffman). RULE: A hospital is not governmental, where 14 of 16 members of the board are government appointed,
the minister has right to veto by-laws and government funding is extensive
(b) Even when an institution has a public function [name function], this is not enough – it must have a governmental function
(McKinney). RULE: A University which is a creature of statute, provides public service, is restricted by funding and
regulation is not governmental – legal control is required.
DISSENT Wilson opts for broader view of govt “sensitive…to wide variety of roles that gov’t has come to play in society
and need to ensure that in all fo the these roles it abides by the constitutional norms set out in the charter” Sets out 3 tests 1)
Control test: Asks whether legs, exec, or admin. branch of govt exercises general control over the entity performs a traditional
government function or a function that in more modern times is recognized as the responsibility of government, 2)
Government function test: asks whether entity performs trad govt function or a function that in more modern times is
recognized as the responsibility of govt; 3) “Stat authority and Public interest” Test: Asks whether the entity is one that acts
pursuant to stat authority specifically granted to it to enable it to further an objective that govt seeks to promote in the broader
public interest. (Uni satisfies all 3) “Although this was not adopted, these factors continued to be relevant factors which
surfaced in future crt decisions”
GOVERNMENT INACTION legislative omissions
Issue: (ex)To what extent does the Charter apply to a “legislative omission” in the context of disputes b/w private parties
governed by the CL and in particular does it apply where: (1) A statutory provision (X) prohibits discrimination on certain
enumerated grounds including [sex]; (2)a companion provision (Y)exempts ceratin private orgs from (X) when making
membership decisions; (3) A private org covered by provision Y demise membership to a private person on their [sex]
YES the Charter Applies (Claimant)
(a) Blainey: Charter does apply because we have a statute [name statute] and a statutory provision that restricts the application
of [a section of a statute]. This essentially permits organizations to discriminate on the basis of [XXX]. Because this is
governmental action, it can be scrutinized under the Charter.
 Aboriginal Rights & Title: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby
recognized and affirmed
VDP: V charged w/ selling fish in contravention of regs under Fisheries Act. No established AR to sell fish TEST for AR
Dissent: dynamic apr, 20-50yrs suffi; agrees that Ab activity must form integral part of distinctive Ab culture
Sparrow: S caught fishing w/ illegal net. AR to fish?  factual record incomplete…back to trial…“exising” =not extg by
Crwn prior to 1982; infringement must be justified (TEST) waivers b/w historical and living heritage version of
ethnocultural approach
Guerin: reln b/w Crwn and Abos is FIDUCIARY. Must always maintain Honour of the Crown in these interactions
Gladstone: selling herring roe on kelp = AR for a grp. Based on traveler’s journal  trading in food prior to contact.
Infringement justified. Anthro & Hist evidence suffice
Sappier: right to log on Crown land for building permanent homes/furniture upheld as particular right. Modern practice
different from traditional practice
Delganuukw: dispute over AT to large lands in BC. AT is like a fee simple, cannot use inconsist w/ trad use of land. Evid
should consider Oral histories TEST for AT
Section 35 (1) Affirms existing aboriginal treaty rights (2) Includes Metis and Inuit (3) Includes rights under land
claims (4)Grants gender equality and aboriginal human rights
Section 35 is not part of the charter, means s. 1 and s. 33 do not apply. S. 25 clearly says that charter shall not abrogate
rights & freedoms in Abo Ppl
Generic Rghts: AT, cult integrity, Honour of the Crwn (presrv & advance interests of Abo grp in Q), right to concl treaties
w/ Crwn, right to self-govt
Approaches to Aboriginal Rights (S.15(1) refers to “existing aboriginal treaty rights” so these approaches discuss what
“AR and “existing” mean)
1. Ethno-Cultural Approach: Each Aboriginal group must prove their specific rights on an individual basis grounded in
their traditional way of life (maybe customs, laws, practices, traditions)
Historical Approach: Determine these rights as of a Living Heritage Approach: Look at the settled way of life at
benchmark date, no new rights can arise after this date the time the claim was advanced and show it has historical
origins
2. Inter-Societal Approach These AR arise from the historical relationship between aboriginals and incoming European
powers (these principles can be found in treaties but also customs). These Inter-societal rights are generic (apply to all
aboriginals), there is a historl and evolutionary approach here
Historical: Look at the inter-social “law” at a certain date. Evolutionary: Inter-social law evolves just like common
law.
3. Human Rights Approach: Based on fundamental, universal, societal human rights, relate to what any human society
needs to survive and flourish
- These are generic rights that apply to all aboriginals, no historical component at all, find principles in model indigenous
rights declarations
ABORIGINAL RIGHTS
TEST for establishing AR
1. Is there an existing AR? (Van der Peet)
 What is meaning of “existing”? Sparrow: existing AR – rights that existed under traditional abo practices that had not
been extinguished by Crown prior to 1982. Sparrow says RIGHTS CAN EVOLVE …Counter argument: ‘existing’ in the
sense of whether they had been changed by statute
a. Determine precise nature of the right – the particular practice (Van der Peet)
(ex) Cutting down birch trees or cutting down birch trees for commercial purpose
 At what level of generality should AR be stated at? level of generality matters! (more abstract = more universal). Crt
says @ general level rather than specific.
 Crucial to be sensitive to Aboriginal perspective when determining the nature of the right (Sparrow)
 But, must consider the purpose underlying s. 35(1) at this stage: reconcili of Abo prior occupation with Crown
sovereignty and expectations
b. VDP TEST: For the existence of an AR to be shown: three steps must be proven (give rise to specific rights not generic):
i. That the activity in question played an integral role in a distinctive society.
*Distinct v. Distinctive: if a particular activity from an Abo perspective was of central importance to their culture,
then even if it’s not unique to their tribe, it may still give rise to a right (can’t be incidental to society, MUST be
defining and central (eg. fishing is basically universal BUT found to be an AR in Sparrow)
“must demonstrate…that the practice, custom or tradition was one of the things which made the culture of the society
distinctive – that it was one of the things that truly made the society what it was” (VDP) … “The evidence reveals that the
Musqueam have lived in the area as an organized society long b/f the coming of Euro settlers, and that the taking of salmon
was an integral part of their lives and remains so to this day” (Sparrow)
ii. That the activity existed prior to first contact with benchmark date [EUROPEAN CONTACT]
Note: Query what is benchmark date Is it date of first contact? Date of sovereignty of the crown? 20-50 Years
(LHD)?
iii. That the activity is connected to the modern activity, and was never extinguished by the Crown
Lamer: Practice or custom must have been in existence at date of European contact, but if it was altered BECAUSE of this
contact, it will not be disqualified as a right (rights may evolve, but if arose solely b/c of Euro influence, not protected)
 how much can rights evolve and still be considered an AR?!
2. Has the right been extinguished?
Clear and plain intention to extinguish? Regulation does not equal extinguishment (Sparrow)
3. Has the right been infringed? (prima facie infringement)
 Onus on the party claiming the right (Sparrow): (1) Is the limitation unreasonable? (2) Does the regulation impose
undue hardship? (3) Does the regulation deny the right-holder the preferred means of exercising the right?
Note: these are just factors (Gladstone); they do not define the concept of prima facie *** This test is usually met quite
easily (Sparrow)
4. Assuming an infringement is found – is that infringement justified? (Sparrow test as modified)
 Onus shift to the Crown (Sparrow)
i. Compelling and substantial objective?
Conservation – Sparrow ; (internally limited?...eg. Abo ppl must be given 1st priority of the catch after conservation needs
have been satisfied) (Gladstone) – Allocation issues; Safety – Sparrow Other compelling and substantial objectives
(Gladstone)
ii. Is the pursuit of the objective consistent with the Crown’s trust-like relationship? (Honour of the Crown) Guerrin
and Haida
 Must be considered in light of the purpose of s. 35(1); reconcile Aboriginal prior occupancy with Crown
sovereignty (Gladstone)
 Must be looked at case-by-case (Gladstone)
 Sparrow – has there been as little infringement as possible in order to effect the desired result?
 Duty to consult with respect with respect to conservation measures being implemented (Sparrow)
VDP has been critiqued for:
(a) Freezing Aboriginal culture to its pre-contact state, effectively prohibiting evolution of Aboriginal culture
(b) For focusing too much on culture.
In many ways Del was a reaction to VDP, Del said that VDP applies only to free-standing AR, NOT to AT, which is a right
to the land itself ∴ Title doesn’t require Abo group to justify practices individually, there is no cultural test for
distinctiveness and even the time period for title is different ∴ the right to land must have been present at the time of
Crown’s assertion of sovereignty, not time of pre-contract.
ABORIGINAL TITLE
Dimensions of Aboriginal Title  surrounds rights to land, where there is no treaty or reserve system in place. Test to est
AT is from Delgamuuk
1. Inalienable Fee Simple Except upon surrender to the crown * can’t be used in any way inconsistent with
traditional uses of the land. May not be used for any purpose that does not destroy ability of the land to be used for
trad purposes (to protect the land for future generations)
2. Physical Fact of Occupation Prior to the Rest of Canadians
3. Held communally
Delgamuukw Test for Establishing AT:  AT is generic
1. Occ of land prior to extension of Crwn sov over the land (diff. from VDP!!  b/c AT is a burden on the underlying
title of the Crwn, AT would not exists as AT until Crown was sovereign)
2. If modern occupation is evidence of prior occ then need to show some real connect b/w current occ and the past (no
need for strict continuity)
3. Exclusive possession at time of sov  lower than CL req b/c it acknowledges different Abo perspectives of property
and ownership
VDP (specific) & Del (generic) Reconciliation: all Abos have the generic right to be entitled to an analysis of specific
rights!