ABORIGINAL PEOPLES & CONSTITUTION

Overview:
•	Treaties were entered into before federation date
•	1867: Canada becomes dominion and acquires the Constitution
●	Constitution, s.91(24) – Indians and Lands reserved for Indians
○	2 branches: 
■	Lands reserved for Indians
■	Indians (ie. property and civil rights, etc, as long as it is targeted at Indians)
•	1876:  Parliament enacts Indian Act
o	1927 – 1951:  Provisions in the Indian Act prohibited them from acquiring counsel
•	1973:  Calder case heard in the SCC
o	(3-3 split) on Q about Aboriginal title
o	Case recognized that Aboriginal title was justiciable
•	1984:  Guerin case heard in the SCC – common law case
•	1982:  Repatriation of the Constitution with Constitution Act 1982
o	Part 1:  Charter
o	Part 2:  Rights of the Aboriginal peoples of Canada
§	S.35:
§	(1) recognize existing Aboriginal & treaty rights
§	(2) define Aboriginal peoples:  Indian, Inuit and Metis of Canada

•	Applicability of Provincial Statutes
●	Singling Out:  statute that is pith and substance aimed at s91(24) will be invalid
●	Indianess: statutes that affect Indianess will be inapplicable.
○	Provincial laws that affect “an integral part of primary federal jurisdiction over Indians and their lands” will be inapplicable, even if they are of general application
○	Cannot “impair the status or capacity of Indians” or affect their “Indianess”
○	Provincial laws cannot affect aboriginal or treating rights, nor their status
○	BUT section 88 may make it applicable by reference (Dick)
●	Paramountcy: provincial law could be rendered inoperative by federal paramountcy
●	Natural Resources: Some provinces have natural resources agreements with Indians and statues cannot affect those because they are constitutionally protected.
●	Section 35: this section constitutionally protects aboriginal and treaty rights. Prior to S 35, provincial laws cannot affect Indianess. This section not only applies to provincial laws, but also federal laws. So Indian Act section 88 might not have as much force as it did previously
○	Outside the Charter so not subject to S1 balancing or S33 notwithstanding clause but also loses protection from s24 remedies
○	Sparrow explains what “existing” rights are

•	Two Propositions:
o	S.91(24) has always been assumed to give Parliament plenary jurisdiction over e/Aboriginal matter as long as the legislation is limited to Indians and Lands reserved for Indians – this is regardless of civil and property rights being involved
o	S.35 refers to the existing Aboriginal and treaty rights.  Since 1982, courts have been asked to decide what s.35 means
§	Sparrow case:
•	First case where SCC had to interpret s.35
•	*Key case in determining the meaning of s.35
•	Dickson J. set out the proper approach and that is still the existing approach used

Guerin v. The Queen [1984] SCC
CROWN OWES QUASI-CONSTITUIONAL FIDUCIARY DUTY /APPROACH TO FIND DUTY				
FACTS:		S.18(1) and s.37 of the Indian Act restricts alienation of Indian lands.  Indian lands cannot be sold or leased w/o first being surrendered to the Crown. The Musqueam band alleges that the crown was in breach of its duty to the band when it leased the land to the Shaughnessy Heights Golf Club. .  No copies of the lease were given to the Band despite requests.  Not until after 12 yrs until they finally gave them a copy. The lease terms ended up being different than what was originally disclosed and some of the terms were not even disclosed at all: 1) term of lease was 15 yrs instead of 10, 2) rental price is different, 3) leasors could remove anything that they built on that land during/after the lease expires. Guerin representing the Band brought action against the Crown for breach of trust as a trustee.
Trial:  awarded $10 Million
CA: Overturned decision		
ISSUE:		Whether the Crown was a trustee/had a fiduciary duty to the Aboriginal people wrt this land transaction?		
DECISION:		Yes.  Crown had fiduciary duty to Aboriginals and it was breached. Trial award upheld.		
				
RATIO: Dickson J.	
FIDUCIARY DUTY OWED BY CROWN:
•	Aboriginal title is suis generis – can’t fit into any category – inalienable unless surrendered to the Crown – Crown gets discretion what is best interest for Aboriginal peoples
•	Quasi-Constitutional Burden on the Crown:  Fiduciary duty here is a common law equitable doctrine that imported into the Constitutional plane
APPROACH TO FIND DUTY:
•	“where by statute, agreement or unilateral undertaking, one party has an obligation to act for the benefit of another, and that obligation carries a discretionary power”
•	Historical relationship with the Crown
•	Original occupation of the land
•	Nature of Indian interest		
REASON:	•	Crown’s obligations towards the Indians cannot be defined as a trust in the private law sense
•	Inconclusive support from Royal Proclamation and Indian Act to support a finding of fiduciary duty
•	Instead:  Looked at Aboriginal’s historical relationship to the Crown + their original occupation of the land  + nature of Indian land interest à finds fiduciary duty
•	Imports Private law: Where by statute, agreement or unilateral undertaking, the Party has an obligation to act for the benefit of another and that obligation carries w/it a discretionary power, the party then in power becomes the fiduciary
– equity will supervise the relationship by holding him to the fiduciary strict standard of conduct
•	Inalienability of lands unless surrendered to the Crownà places an equitable obligation on the Crown that results in a fiduciary duty à b/c in this relationship the Crown gets discretion over what is in the best interest for Indians
•	Crown was found to have breached its fiduciary duty when they obtained a lease much less valuable than promised to the Band w/omitted terms that were orally agreed upon and failure to consult the Band of these new terms		

Dick v. The Queen [1984] SCC
NO IJI FOR ABORIGINAL AS PERSONS / INCORP BY REF / NO PARAMOUNTCY
(Since no IJI for Aboriginal as persons – S.35 More Important!)				
FACTS:		Dick was on a fishing trip and kills a deer.  He was charged under BC Wildlife Act.  He argues that b/c he’s Indian, the provincial statue does not apply to him. The Act is valid, just have to determine applicability.
Note: It is accepted that Dick, an Aboriginal is a federal entity. What is left undetermined is whether he gets immunity.		
ISSUE:		Find whether there is applicability of BC Wildlife Act to Dick:
Narrow issue: What is essential to his culture and does the provision in the Act have a negative effect on this essential part of his culture?		
DECISION:		Applicable! He could have been immune through IJI but Beetz shut the door on that.		
				
RATIO: Beetz J.	
Indianess: status or capacity of the Indian

Applicability
Historically the provincial laws of general application can apply on its own force unless it affected “Indianess” (which is like IJI, and the core)
By Section 88, the Courts previously (Kruger) said that it doesn’t incorporate laws that affect “Indianess”, BUT in this case they changed their mind and says it incorporates all provincial laws regardless if it affects Indianess. In theory, ONLY the laws that affect Indianess will need Section 88 in order to operate.

Paramountcy
Section 88 internally has an exception for paramountcy and federal law prevails. The wording of the paramountcy suggests that provincial laws are applicable “except to the extent that such laws make provision for any matter for which provisions Is made by or under this Act”. It does not require “conflict” like in paramountcy. So S88 might render inapplicable even some laws that are not in direct conflict with the Indian Act.

S.88 INDIAN ACT:
•	Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal and Statistical Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Act
NO IJI FOR ABORIGINALS AS PERSONS
•	S.88 Indian Act:  incorporates by reference all valid provincial laws of general application, even if they impair “Indianness” to Aboriginals
•	Note: Aboriginal lands can still claim IJI
“INCORPORATE BY REF” APPROACH
•	Problem:  Legislative Interdelegation à Parliament cannot lend their legislative jurisdiction to Province via statute; and vice versa. You can sub-delegate but not interdelegate
•	Applicability: Approach is limited to areas where Parliament has plenary legislative jurisdiction (ie:  Indians, Federal works & undertakings)
•	Parliament can NOT unilaterally decide paramountcy over Prov law
•	Parliament can legislate to make one federal enactment paramount over the other		
REASON:	•	Hunting deer is essential to Dick’s culture:  looked at evidence of the practices of his culture and how the killing a deer fit into his band’s culture.  Found that hunting a deer year round in his band is an essential part of “Dick’s Indianness” – with Indianness being the “core” of s.91(24).  But not finished yet, still have to look at how the Indian Act applies.		

R. v. Sparrow [1990] SCC
INTERPRETATION APPR S.35(1) / GENERAL PROP “EXISTING RIGHTS” / INFRINGEMENT JUSTIFICATION (modified Oakes)				
FACTS:		Sparrow was charged for fishing with a fishnet that exceeded the capacity allowable under his license, contrary to provisions in the federal state, Fisheries Act.
Sparrow:  He has an aboriginal right to fish. The net length restriction was inconsistent with s.35(1) of Constitution 1982, which recognizes and affirms existing Aboriginal and treaty rights		
ISSUE:		Whether the length restriction on fishnets was inconsistent with s.35(1) Constitution 1982		
DECISION:				
				
RATIO: Dickson CJC	
APPROACH TO INTERPRET S.35(1):
•	Purposive Interpretation:  Generous and liberal interpretation of the words
GENERAL PROPOSITIONS RE:  EXISTING RIGHTS – S.35(1)
•	“Existing Rights”:
o	A right that existed at 1982  (If right extinguished by 1982, no revival)
o	Intention by Parliament to extinguish an Aboriginal right must be clear and plain  (A right being controlled in great detail does not amount to extinguished)
o	Living tree principle:  Existing rights must be interpreted flexibly to permit their evolution over time – rights are affirmed in a contemporary form rather than in their primeval simplicity and vigour
INFRINGEMENT POSSIBLE W/JUSTIFICATION (Oakes)
•		Although s.35 is not part of the Charter that is subject to s.1 analysis or the s.33 notwithstanding clause, “existing Aboriginal rights” can still be infringed by justification
•	Oakes Test:
o	1) Interference:
§	Onus: Aboriginal/Claimant
§	A.  Is there a relationship b/t legislation and existing right?
§	B.  3 Questions to find “Adverse Restriction” for prima facie
infringement of s.35(1)
•	i) Limitation unreasonable?
•	ii) Regulation impose undue hardship?
•	iii) Regulation deny to the holders of the right their preferred means of exercising that right?
o	2) Justification:
§	Onus:  Crown
§	i) Valid Legislative Objective?
§	ii) Balance of Priorities?  (in light of the fiduciary relationship and obligations the govt has towards Aboriginal ppl)
§	iii) Other pertinent issues:  Not Exhaustive
•	Minimal Infringement to get desired result?
•	Fair compensation?
•	Aboriginal consulted or not?		
REASON:	•	Did find s.35(1) right:  court characterized the right as it as:
o	Right to fish for food and social and ceremonial purposes
•	Although case was sent back to trial to answer infringement and justification Qs, court posed some possible benchmarks to measure those Qs
•	1) Infringement:
o	Sparrow must show that net length restriction constituted a prima facie infringement of collective Aboriginal right to fish for food
•	2) Justification:
o	Objective
§	Regulation necessary for the proper management of conservation of the resource or in the public interest
o	Balance of Priorities:
§	Order of priorities:  (1) Conservation; (2) Indian fishing; (3) Non-Indian commercial fishing; (4) Non-Indian sport fishing		

R. v. Pamajewan [1996] SCC
    STEPS TO GET PROTECTION UNDER S.35(1)  

FACTS:	First Nations group passed laws enabling high stakes gambling to take place on the reserves.  These laws were not validly enacted under the Indian Act.  Bands justify the laws as an exercise of their power to self-govt. The bands were charged for keeping a common gaming house w/o a license contrary to the Crim Code.
Pamajewan: Argue that gambling was part of their distinct identity in a similar way as fishing and hunting.	
ISSUE:	Does regulation of high-stakes gambling by this First Nations group fall within the scope of “existing Aboriginal rights” recognized and affirmed by s.35(1)?	
DECISION:	No. Appeal dismissed	
RATIO: Lamer CJ	
STEPS TO TEST PROTECTION UNDER AN ABORIGINAL RIGHT - S.35(1)
•	1) Characterize the right claimed:  one technique is to narrow it down
•	1.5) Attach a label to the activity you want protected
•	2) Determine whether it is a protected Aboriginal right:
o	(a) Terms of a Treaty; OR
o	(b) Van der Peet Test: Adduce evidence to support the right is an element of “practice, custom or tradition integral” to the culture of Aboriginal group – Band and site specific; AND
o	(c) Sparrow Principles:  Determine whether right existed at 1982
•	4) Sparrow Infringement-Justification Test:
o	(a) Prima Facie Infringement
§	(i) Relationship;
§	(ii) Adverse restriction
o	(b) Justification
§	(i) Valid legislative Objective;
§	(ii) Balance of priorities
§	(iii) Other considerations that may ameliorate/accommodate restrictions	
REASON:	•	SCC did NOT address question of self-govt; and narrowed Pamajewan’s issue to: regulating high stakes gambling on reserves; did not decide affirmatively that right to self-government exists.
•	SCC ASSUMED (did not HOLD) for purposes of deciding the case that the right
DOES exist.
•	1) Characterization:  right claimed was narrowed down to “high stakes gambling”
•	2) Evidence adduced did not discharge burden of proof:  court not satisfied that high-stakes gambling was a distinct part of the culture of the Band prior to contact date with Europeans
•	Distinct from Sparrow:
o	Everyone agreed that it was w/o a doubt fishing and hunting were Aboriginal rights that existed way before white men came. They must have practiced it before they arrived
o	In this case, there were doubts as to whether gambling took place before the white men came.	

R. v. Morris [2006] SCC
CLAIM PROTECTION UNDER TREATY RIGHT

FACTS:	DOES NOT INVOLVE S.35(1).
[This case deals with interpretation and application of treaties.  Treaties are just like statutes and contracts in that they are subject to the interpretation of the courts.] Morris performed a prohibited act contrary to BC WildLife Act and charged for: 1) Hunting with a firearm during prohibited hours; 2) Hunting with the aid of light; 3) Endangered safety of others; and 4) Discharging at a wildlife from vehicle.
Trial: Acquitted for “endanger safety of others” charge; convicted for the other ones Morris:  Saanich Nation Treaty provision offers protection from BC Wildlife Act – “at liberty to hunt on unoccupied lands and carry on our fisheries as formerly”. Tsartlip Band is covered by the Saanich Nation Treaty	
ISSUE:	Whether the Tsartlip Band’s right to hunt at night with the aid of illuminating devices is protected by the treaty?	
DECISION:	Yes! They can hunt!  Convictions set aside	
RATIO: Deschamps J	
TREATY INTERPRETATION:
•	Look at the common intentions of the parties at the time treaty was signed:
o	Context incl:  historical, political, economical, and social
•	If common intention found is general and broadàcourts can read down the treaty
(pluck out things that are too absurd to be guaranteed; ie:  hunt dangerously)
TO CLAIM PROTECTION UNDER TREATY RIGHT
•	1) Treaty interpretation (above)
•	2) Demonstrate that the right covers the actual act of the claimant:
o	(a) Respectful approach:  methods of the activity may evolve with modernity; therefore must be flexible and liberal to determining this issue
•	3) Treaty rights exclude application of s.88
o	(a) Does the statutory provision impair Indianness in the claimant
•	4) Meaningful Diminution OR Insignificant Interference:
(not much of a meaning to them just use it like “compliment” vs “supplement”)
o	(a) Protection from statute à argue “Meaningful Diminution”
o	(b) Application of statute à argue “Insignificant Interference”	
REASON:	•	1) Common intention: All forms of hunting guaranteed
o	(a) Broad intention à Read Down à Should not have intended guarantee dangerous hunting
•	2) Claimant hunting at night with illuminating devices.  Still a protected form of hunting à not dangerous; just use modern ways to hunt
•	3) Prohibiting hunting at night with all these restrictions was definitely cutting at
Indianness
•	4) Court argued meaningful diminution à prohibitions went too far	

Section 35

●	Outside Charter of Rights and Freedom
○	Not subject to Section 1 balancing (but courts have used a similar justification test)
○	Not subject to override by Section 33
○	Not limited to governmental action only under Section 32
○	Rights cannot be enforced under Section 24
●	“aboriginal peoples of Canada”
○	Defined in s35(2) to include Indian, Inuit, and Metis
●	“Aboriginal and treaty rights”
○	Rights held by aboriginals not by virtue of Crown grant or legislation but by reason of the fact that they were once independent, self-governing entities in possession of most of the lands
○	Van Der Peet definition
○	Includes aboriginal title, right to fish/hunt, possibly self-government
●	“existing”
○	Sparrow gave a definition
○	Existing = unextinguished
○	Extinguishing rights require “clear and plain” legislation
○	Even if there were statutes “regulating” the practice prior to 1982, s35 protects the right in its unregulated form
●	“recognized and affirmed”
○	Sparrow gave a justification test
■	“recognized and affirmed” should be interpreted according to the principle that treaties and statutes relating to Indians should be liberally construed and in favour of the Indians
●	Application to treaties
○	Marshall
■	Treaty rights could be “regulated” but not extinguished
■	Must differentiate between “defining” and “regulating”
■	Must satisfy Sparrow test if “regulating” a right, but not “defining” a right
■	“regulation” of a right would affect the moderate livelihood of the Indians
●	Application to extinguishment
○	After S 35, aboriginal and treaty rights can be extinguished only in 2 ways: by surrender, or constitutional amendment 
●	Application to provincial laws	
○	Provincial laws that operate through s 88 or in its own force must still pass the Sparrow test if it affects aboriginal rights
●	Duty to consult Aboriginals
○	Haida Nation v BC
Section 35(1) Analysis

1.	Is there an existing aboriginal right?  (Van der Peet)
a.	Determine precise nature of the right – the particular practice (Van der Peet)
i.	Crucial to be sensitive to Aboriginal perspective when determining the nature of the right (Sparrow)
ii.	But, must consider the purpose underlying s. 35(1) at this stage: reconciliation of Aboriginal prior occupation with Crown sovereignty and expectations;
i.	three facts from Van der Peet:
I.	nature of the action claimant alleges to have done pursuant to the right;
II.	nature of government action or legislation alleged to have infringed the right; 
III.	practice, custom or tradition relied on to establish right

a.	Is activity an element of a practice, custom or tradition integral to the distinctive culture of the particular aboriginal group?  (one of the things that truly made the society what it was (Van der Peet; Gladstone)
i.	Evidence:
I.	Anthropology
II.	Oral History

b.	Conclusion on Van der Peet analysis:  is there an existing aboriginal right?
2.	Has the right been extinguished?
a.	Clear and plain intention to extinguish?  Regulation does not equal extinguishment (Sparrow)
3.	Has the right been infringed?  (prima facie infringement)
	a.	Onus on the party claiming the right (Sparrow)
		i.	Is the limitation unreasonable?
		ii.	Does the regulation impose undue hardship?
i.	Does the regulation deny the right-holder the preferred means of exercising the right?
ii.	Note:  these are just factors (Gladstone); they do not define the concept of prima facie
b.	This test is usually met quite easily (Sparrow)
4.	Assuming an infringement is found – is that infringement justified?  (Sparrow test as modified)
	a.	Onus shift to the Crown (Sparrow)
		i.	Compelling and substantial objective?
			I.	Conservation – Sparrow ; (internally limited?) (Gladstone)
			II.	Safety -- Sparrow
			III.	Other compelling and substantial objectives (Gladstone)

i.	Is the pursuit of the objective consistent with the Crown’s trust-like relationship?
I.	Must be considered in light of the purpose of s. 35(1); reconcile Aboriginal prior occupancy with Crown sovereignty (Gladstone)
II.	Must be looked at case-by-case (Gladstone)
III.	Sparrow – has there been as little infringement as possible in order to effect the desired result?
IV.	Duty to consult with respect with respect to conservation measures being implemented (Sparrow)
5.	Conclusion
 Edinger Checklist for Aboriginal Rights
Provincial Statutes
1.	Validity – pith & substance
2.	Applicability – operate by virtue of s88? Or of its own force?
3.	Operability – paramountcy? If so, is it paramountcy under s88? Or under the Constitution?
4.	Immunity under S35?
Federal Statute
1.	Validity?
2.	Immunity under s35?
Treaty Rights
1.	Interpret treaty right (Morris)
2.	Whether the treaty right is impaired?
Honor Of the Crown
●	Can always be invoked independently of other arguments
Approach to S35
1.	Characterize the right being claimed
2.	Adduce historical evidence of practice of that right at time of contact (integral to the distinctive cultre)
3.	Argue the law impairs the right
4.	Justification  (Crown’s burden)
CHARTER APPLICABILITY

Background:
•	Pre-Charter:  Other methods to protect individual rights
o	1.  Common law offered individuals some protection for their rights through prerogative writs
§	Ie:  Habeaus corpus:  Demands explanation as to why someone has been imprisoned
o	2.  Division of Power Cases
§	Legislation was challenged at both levels of govt on the grounds that the legislature in question did not have legislative jurisdiction to enact that statute
§	Purpose-Effect:  Counsel/Court used this technique creatively to strike down Statutes/Statutory Provisions which was considered to be inconsistent with the rights that Canadians ought to enjoy
§	Limitation:  If one level of govt’s law was struck down, does not declare it invalid for the other level of govt to enact the same legislation
o	3.  Before HR Acts and Bill of Rights were drafted (1950s), the SC – Particularly Rand J. –
began finding “Unwritten Principles” in the Constitution
§	These Unwritten Principles are rights and freedoms
§	They were found in division of power cases to strike down enactments or parts of enactment
§	Academics:  Happy people! They liked what Rand J. was doing b/c they found that there is a need of some sort of Charter/Bill of Rights and this was the best way to get it at the time
o	4.  Bill of Rights:
§	1960:  Diefenbaker’s govt enacted “Bill of Rights”
§	It is still in force and can be invoked by party that thinks it’s necessary/helpful
§	First Major Defect:  Not Entrenched
•	“Entrenched”:  means cannot be amended, repealed or modified by regular legislation
•	Bill of Rights was just an ordinary statute
•	Effect:
o	Can be repealed, amended or modified by Parliament
o	Courts do not have to interpret Bill of Rights as paramount over other statutes
§	Second Defect:  Expressly limited to federal legislation
•	S.2 uses the words “e/law of Canada”
•	Effect:  Can be applied only to laws enacted by Parliament
§	As a result:  Bill of Rights amounts to an Interpretation Act
•	Courts will do their best to interpret federal legislation so as to protect the rights described in Bill of Rights
•	Parliament can still use “notwithstanding” clause
§	Why is it still important to us?
•	There may be some rights that are not protected by the Charter but are in the
Bill of Rights
•	Ie:  S.1(a):  right of the individual to life, liberty, security of the individual
and enjoyment of property

o	5.  HR Legislations
§	Covers the gap left by the Charter
§	Deals with relationship b/t private citizens
•	Applicability of Charter:
o	2Q in Applicability:
§	Who can claim the benefit of the Charter?
§	To whom does the Charter apply?
o	Both Qs depend on Interpretation of:
§	*S.32 Charter
•	(1) Charter applies:
o	(a)  to the Parliament and govt of Canada in respect of all matters within the authority of the Parliament including all matters relating to the Yukon Territory and NWT; AND
o	(b) to the legislature and govt of each province in respect of all matters within the authority of the legislature of each province
§	Other sections of Charter setting out and guaranteeing the rights claimed
o	Who does Charter protect?
§	Depends on the right Claimed
§	Pay attention to the wording of the charter sections:
•	Different words are used in different sections: “everyone”; “every citizen of
Canada”; “any person”; “every individual”; “any member of the public in
Canada”; “anyone”
•	Find out what they mean wrt what class of parties it applies to:
o	Ie:  “natural persons”; “legal persons”; “citizens”; “aliens”; “PR”
•	*Note:  whenever general term used à have an argument for “more than natural persons covered”

RWDSU v. Dolphin Delivery Ltd. [1986] SCC
“PARLIAMENT & GOVT” DEF’D / INTENT OF CHARTER / CHARTER VALUES				
FACTS:		RWDSU is a labor union that was involved in a dispute w/Purolator. They gave notice to picket Dolphin who was doing business with a company that was connected to Purolator, unless they ceased business relations with that company.  Dolphin sought interlocutory injunction prohibiting “secondary picketing”.  Canada Labor Code did not contain any provisions concerning secondary picketing.
Trial:  Under common law, since Dolphin was not an ally of Purolator, they are granted an injunction.
RWDSU:  Charter s.2(b) – freedom of expression – protected their right to peaceful picketing.
SCC: Found that picketing was protected by s.2(b), but injunction can be saved by s.1. However, the Charter challenge did not survive the first hurdle – does not apply!		
ISSUE:		Does Charter apply to common law? Does Charter apply to private litigation?		
DECISION:		In this case applies to neither.  Need some sort of govt intervention.		
				
RATIO: McIntyre J.	
INTENT OF CHARTER:
•	To restrain govt action and protect the individual from unjust infringement by the govt
“PARLIAMENT & GOVT” – S.32
•	S.32:  “Parliament & govt” means Charter applies to legislative and executive.
•	Charter does not apply to the judiciary b/c of judicial independence
•	Charter only applies to common law/private litigation when there is governmental intervention/action
CHARTER VALUES:
•	Courts must still apply and develop their principles of common law in a manner consistent with the fundamental values enshrined in the Constitution		
REASON:	DISTINCTION B/T COURT VS. ARBITRATOR:
•	To regard a court order as an element of govt intervention that can invoke the Charter would widen the scope of the Charter application to virtually all private litigation.  B/c all cases must end eventually with an enforcement order and if the Charter precludes the making of the order where a Charter right would be infringed, it would seem that all private litigation would be subject to the Charter
•	Risking frivolous litigation is worse than frivolous arbitration applications		

Slaight Communications Inc. v. Davidson [1989] SCC
CHAIN OF STATUTORY AUTHORITY / PRESUMPTION & REBUTTAL OF CONST. VALIDITY		
FACTS:	An arbitrator appointed by the Minister under the Canada Labor Code found that an employee had been wrongly dismissed. As part of the remedy, he ordered that the employer supply a letter of reference containing specific language by the arbitrator and prohibited the employer from supplying any other info about the employee. This remedy was challenged by the company as a violation of s.2(b) – freedom of expression.	
ISSUE:	Are the delegated powers from statutory authority to public officers subject to the
Charter?	
DECISION:	Yes Arbitrator’s order is subject to the Charter!! But the violation was saved by s.1 analysis.	
RATIO:	
APPLICABLE TO CHAIN OF STATUTORY AUTHORITY:
•	The whole chain of statutory authority, flowing down to regulations, by-laws, orders, decisions which depends for its validity on statutory authority are subject to the Charter
PRESUMPTION OF CONSTITUTIONAL VALIDITY:
•	Presumed that legislation conferring an imprecise discretion does not confer the power to infringe the Charter, unless that power is conferred expressly or by necessary implication
REBUT PRESUMPTION OF CONSTITUTIONAL VALIDITY:
•	Legislation that authorizes discretion, which either expressly or by necessary implication confers a power to infringe a protected Charter right must undergo s.1 analysis	
REASON:	•	Arbitrator is appointed by statute and his discretion is delegated power from the statute and remedial powers also derived from statute.  Court found that they are subject to the Charter.  How is that different from a judge? Look at RWDSU
•	Found that arbitrator’s discretion is broad and by necessary implication gives him the power to exercise infringement of charter rights
•	Must under go s.1 analysis – justified.	

McKinney v. Univ of Guelph [1990] SCC
IDENTIFY THE ENTITY:  CONTROL TEST VS. INTEGRATED TEST / GOVT POLICY				
FACT:		Professors claim that university policy of mandatory retirement violate s.15 Charter rights. Professor claims that the combination of the fact that the university:  1) created by statute;
2) funded by govt (in part); and 3) carries out a public fxn, put together make this a govt institution and therefore subject to the Charter.
HR Act was the statute at issue – as it implicitly permitted mandatory retirement at 65 yrs of age by confining its protection to employed persons b/t 18 and 65.		
ISSUE:		Do the universities form part of the govt apparatus as defined in s.32(1) of the Charter to be subject to the Charter?		
DECISION:		No. Appeal dismissed		
RATIO:
La Forest J. (majority)

Wilson J. (Dissent)		
Majority: Narrow Approach
CONTROL TEST:
•	1) To determine whether a body is controlled by govt to render it a govt institution, look at every factor in isolation
•	2)  If any one factor shows that govt controls the body à Govt institution subject to Charter
•	Need to look at DEGREE OF CONTROL of the Government and the
RELATIONSHIP to the Government
Note: Do not generalize that all univs are not subject to the Charter, refer to
Douglass
GOVT POLICY:
•	Even if not govt entity, if the rule carried out was a govt policy à Charter is still applicable

Dissent: Inclusive Approach
3 QUESTIONS TO ASK TO IDENTIFY ENTITY
(Integration of Control Test + Govt Fxn Test + Govt Entity Test)
•	1. Does legislative, exec or admin branch of govt exercise general control over the entity in question?
•	2.  Does the entity perform a traditional govt fxn or a fxn as a responsibility of the State?
•	3.  Is the entity one that acts pursuant to statutory authority specifically granted to it to enable it to further an objective that govt seeks to promote in the broader public interest?
•	Affirmative answer to 1 or more of these questions would be a strong indicator that the entity forms part of govt
•	(*B/c of the evolving nature of govt, the questions must also be capable of evolving; thus the list is not exhaustive; except a practical guideline)		
				
REASON:	Majority: Narrow Approach
•	Does not look at the entirety of the arguments that were submitted by professors
•	He picked off each one:  1) ordinary companies are created by statute; 2) lots of things are funded by govt ; 3) lots of entities carry out public fxns
•	Ultimate thing it depended on was:  Organization of Board of Governors
o	Some are gov appointees; but majority are not
o	Therefore despite many ways that univ has some connection to govt, it’s independent in the way it spends money and its policies b/c the governing board is not controlled by govt
• Opening up private activities to judicial activity would impose an impossible burden on courts
• There will be no end to litigation if we do this. Everyone will be afraid to act because they do not want to be sued.
Dissent: Inclusive Approach		

Douglas Kwantlan Faculty Association v. Douglas College [1990] SCC
CONTROL TEST (Compare factual differences with McKinney)		
FACTS:	College created pursuant to College and Institute Act, which made it a corporation and an agent of the Crown.  It had a Board appointed by Lt Governor in Council at pleasure. The Act gave the Minister the power to issue directives regarding post-sec education and training and to provide services considered necessary.  Minister also approves all by-laws of the Board and provides 83% of the college’s operating grants. The College also
submits its annual budge to the Minister.	
ISSUE:	Is Douglas College a govt institution that is subject to the Charter?	
DECISION:	Yes!	
RATIO:
La Forest J.	
CONTROL TEST:
•	How much control is the govt exercising over the entity – Factual Finding	
REASON:	•	Compared to the McKinney case, the organization of the college evidenced a more direct control of the college
•	Therefore the college is a govt entity and shall be subject to Charter
NOTE: Cases turn on the facts that show the relationship b/t the univ and the govt.	

Multani Case (2006) SCC EXTENSION OF CHARTER		
FACTS:	School board in local district had code of conduct that prohibits students from carrying weapons and dangerous objects.  Son of Mr. Multani is a Sikh and wanted to bring his kirpan with for religious reasons.  School Board first said yes and then said no.  Multani Challenges the Charter.	
ISSUE:	Is the School Board a govt entity?
Was the Code of Conduct just a rule or rule of govt policy?	
DECISION:	Charter applies (5-3 split)	
RATIO:	Majority
•	“Extension of Charter”:  application of Charter extended to the “actual decisions” made by the administrative body
Minority
•	If other admin rights techniques available, no need to extent application of Charter	

Hills v. Church of Scientology of Toronto [1995] SCC 
COMMON LAW MODIFICATION - CHARTER VALUE		
FACTS:	Civil suit for defamation arising from comments made by D’s lawyer at a press conference on the courthouse steps.  Both P & D were private parties.  D alleged that the common law tort of defamation violated his s.2(b) rights, that the defence of qualified privilege must be broadened in order to conform with the Charter.	
ISSUE:	Can a party of private litigation challenge the common law with a Charter right?	
DECISION:	No!	
RATIO:	
COMMON LAW INCONSISTENT W/CHARTER VALUE:
•	Weigh the fundamental Charter “value” against the underlying principle of the common law
•	No Charter analysis
•	Onus:  Party alleging that common law needs to be modified

Note: This case is good 99% of the time.  Except same sex marriage case
Hyde (Court found that it was so fundamental a change to common law if same sex marriage recognized that full charter analysis was necessary)	
REASON:	•	There is no govt intervention in this – they are 2 private litigants
•	Can’t invoke charter
•	But can use fundamental charter values to see if common law principle is consistent	

Eldridge v. BCAG [1997] SCC
HOSPITAL – PRIVATE / CHARTER APPLICABLITE PRIVATE ENTITY / FXN VS. ENTITY

FACTS:	Medical care in BC delivered by 2 mechanisms:  Hospital Insurance Act & Medical Services Plan.  Neither plans pay for sign language interpretation for the death. The appellants in this case were born deaf.  Both plans deal with medical treatment by docs and o/health care practitioners in BC.
Eldridge: Absence of interpreter impairs their ability to communicate w/their docs and o/
health care providers and thus increases the risk of misdiagnosis and ineffective treatment
– violation of s.15 charter right
(hospital is found to be a private entity)
ISSUE:	Can the Charter apply to a private entity?
DECISION:	Yes! RATIO:
•	Stoffman:  Hospitals are private actors – not a govt entity as per s.32

CHARTER APPLICABILITY TO PRIVATE ENTITY:
•	Fxn:  Is there a “direct and precisely defined connection” b/t specific govt policy and the actor’s activity to qualify as govt action?
o	If NO à private fxn à not applicable
o	If YES à govt fxn à applicable

Note: Contrast b/t finding entity and fxn:
•	Entity:  look at “degree of control”
•	Fxn:  look at “nature of activity”

●	Government – statute – relationship—function—policy 

REASON:	•	Although hospitals have been recognized as being non-governmental entities, this case is different: the purpose of the Hospital Insurance Act is to provide particular services to the public. Although the benefits of that service are delivered and administered through private institutions – hospitals – it is the government, not the hospitals, that is responsible for defining both the content of the service to be delivered and the persons entitled to receive it.
•	The structure of the Hospital Insurance Act reveals that in providing medically necessary services, hospitals carry out a specific governmental objective, hospitals are merely the vehicles the legislature has chosen to deliver this program
•	Unlike Stoffman:  in the present case there is a direct and precisely defined connection b/t a specific govt policy and the hospital’s conduct. The alleged discrimination is intimately connected to the medical service delivery system instituted by the legislation.
•	Provision of medical services is not merely a matter of internal hospital management, it is an expression of govt policy

Godbout v. Longueuil [1997] SCC
GOVT ENTITY – FXNS / CHARTER COLORABILITY		
FACTS:	City of Loongueuil (A) adopted a resolution which required all permanent employees to reside within its boundaries. As a condition of obtaining permanent employment, Godbout (R) signed a declaration promising that she would est her principle resident in the City and that she would continue to live there for as long as she remained in the city’s employ.  During her employment, she moved to a neighboring municipality and was dismissed.	
ISSUE:	Whether e/single function of a govt entity is subject to Charter scrutiny?	
DECISION:	Yes once a govt entity- e/thing is subject to Charter	
RATIO:
La Forest J.	
GOVT ENTITY
•	Govt Entity à all its functions are subject to Charter
PRIVATE ENTITY
•	Private Entity + Govt fxn à subject to Charter scrutiny
•	Factors to find fxn:  do not readily admit of any a clarification – Case by Case	
REASON:	•	SCC here is concerned of charter colorabilty:
o	(1) Prevent govt from trying to evade charter scrutiny by delegating fxns and setting up private entities to perform these fxns
o	(2) Prevent govt from trying to evade charter scrutiny by incorporating by-laws into K to render it a private fxn	

Overview:  Charter Applicability

§	1) Who can claim the protection of the Charter?
•No single answer
•All depends on the “right” being claimed
•If there is any doubt about the eligibility of the claimant:
oLook at the right claimed (ex:  “everyone”, “every person”)
oFind case law that interpret that right
oMatch that to the claimant
§	2) Who or what is subject to Charter scrutiny?
•Turns on the meaning the courts have given to s.32
•A government may enact that a law can be against a certain number of charter provisions s.2 or s.7-15; must cease to have effect after 5 years.
•What does govt include:
oBasic meaning: The Charter applies to the “parliament and legislatures”
§Therefore legislation is subject to charter scrutiny
úFed legislation or delegated legislation
úProv legislation or delegated legislation (ex:  regulations, by laws)
oExtended meaning of “govt”: What does “govt” include?
§Entities deriving powers from statute (admin tribunals, arbitrators)
§Includes entities controlled by govt
§Includes govt fxn performed by private entities
úWe don’t know what a govt function is.
úAll we know is that it’s not equivalent to a public fxn
§**if the entity OR fxn is the meaning of govt within s.32, then all activities are covered
•What does govt NOT include:
oDoes not include the courts. 	
oS.32 does not ordinarily apply to common law in actions b/t private litigants
•Nonetheless, Charter values are relevant e/where
oCan always invoke them in private litigation
2 Gen Propositions:
§	1.  Real concern by the SCC:  Charter colorablity
§	2.  Broad interpretation of s.32 is another aspect of the current court’s large, liberal and purposive approach to the charter
•will interpret (atleast) application section quite broadly

CHARTER JUSTIFICATION

Introduction:
●	Charter gives the judicial branch the power to look at the merits of the legislation
●	Charter justification involves statutory interpretation:
o	Charter provisions
o	Legislation challenged (99% of Charter justification cases challenge legislation)
•	Rules of Interpretation:
●	ordinary statutory interpretation rules
●	 “living tree doctrine” applies equally to Charter
○	Liberal, purposive approach
○	An approach that anticipates changes in the interpretation and scope of rights and freedoms over time
●	must to deal with the words as written on the page
•	Assisting Sources for Interpretation of Charter:
1.  Charter Interpretation Provisions:
§	S.27:  Charter shall be interpreted in a manner consistent with the preservation and enhancement of multicultural heritage of Canadians
§	S.28:  Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons
2.  Committee Proceedings:
§	Hansards
3.  Pre-Charter Cases:
§	Bill of Rights cases are very relevant
4.  International Sources:
§	Charters from other jurisdictions (ie:  UN Charter)
§	Human rights Legislation/Conventions in other jurisdictions
•	Notwithstanding Clause – S.33
o	It can be invoked against:  s.2, and s.7 to s.15
o	Charter rights are clearly not absolute
o	Clause is retroactive
•	Section 1 Justification
o	EVIDENCE IS VERY IMPORTANT
o	Other jurisdictions had the problem of constantly re-interpreting rights b/c there are no absolute rights
o	Drafters decided to include s.1 to deal with the problem of absolute right
o	Two-Stage Procedure (Charter interpretation):
1.  Find the breach of right pursuant to your claim
•	Characterization process:  interpret the right and your alleged violation
•	This is a relatively easy stage b/c Courts are very liberal at this level as the limitations kick in at s.1

2.  Rights are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and demo society – Section 1 analysis
•	(a) “prescribed by law”:  there must be legislation
o	(i) if no legislation à no s.1 analysis – charter challenge fail
o	(ii) if there is legislation à Is the provision too vague? (Nova Scotia Pharmaceuticals)
§	Note:  Provisions of “discretion” are often difficult/
impossible to define and found as too vague
§	Yes è no s.1 analysis –charter challenge fail
§	No è s.1 analysis J
•	(b) “demonstrably justified in a free & demo society”
o	OAKES TEST

Leading Cases

●	R. v. Nova Scotia Pharmaceuticals [1992] SCC
■	Leading case for vagueness
●	Vagueness (founded on rule of law) and overbreadth are 2 concepts, can be separate but closely related
○	Ie. intended effect of a statute may be perfectly clear and thus not vague, but may be overly broad
○	Ie. a statute may be vague so that its effect are considered overbroad
●	Vagueness requires considering of factors including:
○	Need for flexibility and interpretation by the courts
○	Impossibility of achieving absolute certainty
○	Possibility that many varying judicial interpretations of a given disposition may exist or coexist
●	Vagueness can be raised under 3 basis by a plaintiff
1.	Section 7 – violation of the principles of fundamental justice
■	Fundamental justice requires the law being not too vague
■	Similar considerations as Section 1 in limine
2.	Section 1 in limine- too vague that it cannot be “prescribed by law”
■	Courts are reluctant to apply this branch to declare things as not “law” but rather consider it under the third branch 
3.	Section 1 Oakes test – the minimal impairment stage (if its effects are so broad, how can it be minimal impairment?) 
■	Closely resembles the idea of “overbreadth” and overbreadth is subsumed into this branch
●	Vagueness is a single concept composed of branches 1 and 2 above 
●	Vagueness can also be raised under sections of the Charter where the section has some internal “limitation” itself
●	Overbreadth is really just an analytical tool and no independent existence as a doctrine
●	Doctrine of vagueness contains
1.	Fair notice to the citizen
■	Formal aspect of notice = acquaintance with the actual text of the statute
■	Substantive aspect = an understanding that some conduct comes under the law
■	Substantive notice is required
●	Can be accomplished by bringing attention to the actual terms of the law
■	Fair notice may not be given if enactments are general and does not relate to any element of substratum of values held by society
●	In these cases, a higher standard needed
2.	Limitation of enforcement discretion
■	Cannot be so vague that prosecution automatically leads to conviction
■	Cannot be so vague that police can interpret it widely
■	Uncontrolled discretion is bad
3.	must have adequate basis for legal debate (the underlying principles found in points 1 and 2 above)
●	law will be found unconstitutionally vague if it lacks in precision as not to give sufficient guidance for legal debate
●	if it is understandable to lawyers and judges, then it’s not too vague
●	R. v. Oakes [1986] SCC
■	FREE & DEMOCRATIC VALUES
●	underlying values and principles of a free & democratic society are the genesis of the rights and freedoms guaranteed by the Charter, and the standard against which limit on right or freedom must be shown  (use these values or anything you believe is “a fundamental Canadian value that’s part of our free and demo society”, argue it and persuade the court to accept your interpretation that helps your right is infringed beyond justification)
○	Respect for the inherent dignity of the human person
○	Commitment to social justice and equality
○	Accommodation of a wide variety of beliefs
○	Respect for cultural and group identity
○	Faith in social and political institutions which enhance participation of individuals and groups

■	ONUSES (when we move to Section 1 we already established that there is an infringement):
○	Charter Infringement:  Party raising Charter challenge
○	Justification (Oakes Test):  Crown
○	Standard of Proof:  High BOP, but not as high as beyond a reasonable doubt (the more serious infringement, the higher the balance needs to be) – subsequent SCC cases showed that there is only 2 standards: civil and criminal. It is uncertain if the standard of proof is still good law. We should think of the standard of proof as simply civil. Irwin Toy para 75 seems to suggest it is BOP

●	OAKES TEST:
1.	Pressing & substantial objective? (possible to use Hansard, reports, research to illustrate this)
2.	Proportionality (means chosen are reasonable and demonstrably justified):
a.	Rational connection (measures/means carefully designed to achieve objects in question);
b.	Minimal impairment (do the means minimally impair the right?);
c.	Balance the effects of the measure and the objective which was identified as of “sufficient importance” (the more serious the effect, the more important the objective must be – cost benefit analysis)

●	Newfoundland (Treasury Board) v. N.A.P.E [2004] SCC
■	Section 15 equality rights violation, financial crisis as a justification
■	DEFERENCE TO GOVT:
●	When policy decisions are not obviously correct/wrong (appear reasonable)è Deference to legislature + large margin of appreciation to make choices
●	Government did not present much evidence but judicial notice was taken of the Hansard debates since the financial discussions are part of Cabinet privilege
○	Evidence extremely important in Charter justification but it is possible to ask the court to take judicial notice of points if it is easily retrievable or common sense 
●	judicial notice can come from general knowledge or information that can be looked up

■	FINANIAL JUSTIFICATIONS:
●	Solely financial reasons cannot be a pressing and substantial objective (but financial reasons are relevant to determine the standard of deference for the test of minimal impairment)
●	Financial crisis can be a pressing and substantial objective, sometimes financial reasons balloon to such an extent that governments should be given power to take remedial measures, even if they affect charter rights (courts look with strong skepticism on these reasons)
●	Financial crisis will probably require no targeting to specific groups and possibly temporary measures only
○	Also should consider applying other measures prior to this

●	Alberta v Hutterian Bretheren of Wilson Colony [2009] SCC
■	Religious belief against picture taking for drivers license – last stage of proportionality analysis
■	Cost-Benefits Analysis
●	The first 3 stages is an assessment of the law’s purpose, the last branch takes full account of the effects on the individual
●	whether the impacts of the rights infringement is disproportionate to the likely benefits of the impugned law (whether the benefits are worth the costs)
●	Rather than reading down the objective of government under “minimal impairment”, the court should consider this branch
●	Steps
○	First inquire into the salutary effects associated with the legislative goal
■	Security concerns, if soundly established, requires proper recognition in ascertaining limit on religious freedom
■	Government not required to SHOW that the benefits in fact happened
■	Only need to be reasonably beneficial
○	Second, consider the deleterious effects
■	Seriousness of the limit on relation varies from case to case
■	Deleterious effects of a limit on religion requires consider the impact on Charter values (liberty, human dignity, equality, autonomy, and enhancement of democracy)
■	Judging seriousness, must take into account the perspective of the claimant, but keep in mind a multicultural society
■	Absence of a meaningful choice by the claimant  very serious. less serious if it merely increases the cost for the claimant
■	Dissenting judge viewed the benefit of not providing an exemption not outweighing the substantial burdens on the claimants
●	Focused on the increased benefit to the system rather than the “benefit of the system”
REMEDIES:

Introduction:
•	Always keep in mind what remedies you are looking for and provide justifications
•	4 Major Remedies Pre-1982:
o	1) Declaration of Invalidity
§	Common federalism remedy
§	Incorporated into s.52 (but limited to strike down to the extent of inconsistency)
o	2) Inapplicability (IJI)
§	Limited to particular defendant
o	3) Declaration of Inoperability (Paramountcy)
§	Remedy for everyone who was subject to the impugned legislation
o	4) Reading down 
§	Ambiguous word/clause à ordinary interpretation
§	Presumption of constitutional validity:
•	(a) court takes meaning most consistent with Constitution
•	(b) court takes a narrower interpretation
•	Two Charter Remedies (mutually exclusive):
o	s.52:  Remedy that applies to the law as a whole, not just the individual
■	applies to the whole Constitution and entrenches it as the supreme law and protects it from future inconsistent laws. 
■	“any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”
■	Includes:  Declaration of invalidity (strike down); Reading Down (severance) ; Reading In
o	s.24: When claimant’s charter rights infringed and situation calls for a specific remedy for that individual only
§	“(1) anyone who’s rights or freedom as guaranteed by the charter have been infringed, may apply to a court of competent jurisdiction to obtain such remedy as the court sees just and appropriate in the circumstances”

Leading Cases
■	Schacter v. Canada [1992] SCC
●	Benefit open to adoptive parents but not biological parents
●	Continues to be the leading case
●	Section 1 justification provides significant evidence in determining a remedy under the Charter
●	Guidelines for Section 52 and 24 (1) – not hard and fast rules
○	The 2 remedies are not mutually exclusive, but rarely available together
○	Section 52 remedies include:
1.	Striking Down
●	The whole statute when the purpose of legislation is unconstitutional under part 1 of Oakes test
●	The inconsistent portions when it fails “rational connection” under Oakes test
●	May be appropriate when 2nd/3rd branch of proportionality test in Oakes is not met
2.	Severance (reading down)
●	Declare inoperative the inconsistent part AND such part of the remainder of which cannot be safely assumed that the legislature would have enacted without the inconsistent portion
●	May be appropriate when 2nd/3rd branch of proportionality test in Oakes is not met
3.	Reading in
●	May be appropriate when 2nd/3rd branch of proportionality test in Oakes is not met
●	Requires some precision on the basis of the requirements of the Constitution to “read-in”
4.	Delayed declaration of invalidity
■	Steps to Finding Remedy
1.	Define extent of the inconsistency
○	See which part of the Oakes test it failed. 
■	Pressing and Substantial  legislation entirely
■	Rational Connection  portions of the legislation
■	Remaining 2 part of Oakes test  case-by-case
2.	Deciding whether severance or reading in is appropriate when:
a.	legislative objective is obvious and severance/reading in would further that objective or constitute a lesser interference w/that objective than striking down
■	should not severe if Parliament would not have passed it without the severed portions, just strike it all down
b.	choice of means to further that objective is unambiguous that severance/reading in would constitute an acceptable intrusion into legislative domain
■	Should not read-in if there is no sufficient precision from the requirements of the Constitution
■	Should not read-in if there are alternatives 
c.	severance/reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change the nature of the legislative scheme
■	When striking down, if remaining portion is long standing  would have been enacted without the impermissible portion
3.	Whether to temporarily suspend the declaration of invalidity
○	Appropriate when striking down 
■	poses a potential danger to the public
■	offends the rule of law
■	cases of underinclusiveness as opposed to overbreadth
○	separate question from whether reading in/striking down is an appropriate route
○	delayed declarations of nullity should not be seen as preferable to reading in in cases where reading in is appropriate
○	Section 24 (1)
■	Jurisdiction to grant a constitutional remedy for some action that breach the constistution
1) Even when s.52 is not engaged, a remedy under this section alone is available when the statute/provision is not itself unconstitutional, but some action taken under it infringes a person’s Charter rights
2) When provision is unconstitutional and immediately struck down under s.52, no retroactive s.24 remedy is available
3) Delayed declaration of invalidity does not avail s.24 remedy b/c it will give the delayed declaration retroactive effect
4) If reading down or reading in was adopted, s.24 remedy not available b/c it is duplicating

■	Vriend v. Alberta [1998] SCC
●	Leaving out sexual orientation as a prohibited ground of discrimination 
●	Rules for severance: 
(1) Would the legislature have passed the rest of the statute w/o that provision?
(2) Do the other provisions depend on that provision?
 (3) Is this provision integral to the statute? (would legislature have passed the remaining portions anyways?)

●	“Reading in” is an appropriate remedy for underinclusive legislations if it respects the role of the legislature and respects the purpose of the Charter (Charter designed to protect minorities and therefore not undemocratic)
●	Twin Guiding Principles: respect for the role of legislature and respect for the purposes of the Charter

■	Doucet-Boudreau v. Nova Scotia (Minister of Education) [2003] SCC
●	Trial judge giving an order to government to report on status for building French schools
○	Court orders must be CLEAR  what does “best efforts” mean?
○	There was a separation of power issues as the court is accused of stepping into executive roles (judicial branch needs to consider its appropriate role in the Constitution)
●	PROPOSITIONS RE: INTERPRETATION OF S.24
○	The meaning of “appropriate and just in the circumstances”:
1.	A remedy should meaningfully vindicate the rights and freedoms of the claimants
●	Relieved the need to make new applications for every violation
●	Ensure prompt compliance
●	Alternative (traditional) remedies available?
2.	A remedy should employ means that are legitimate within the framework of our constitutional democracy (avoid undue intrusion outside judicial role)
●	Must leave detailed choices of means to the executive
3.	A remedy should invoke the function and powers of a court (don’t go too far over the line – inferred from their normal/precedent tasks or procedures)
●	Cannot take over the management and coordination of compliance
●	Cannot be administratively supervising
●	Allowing parties a forum to cross-examine their efforts is ok
●	Functus officio- must have a finality of judgment to allow an appeal
●	Therefore, decisions cannot be varied after it is released
4.	A remedy should be fair to the party against whom the order is made (no substantial hardship)
5.	Any remedies employed under s. 24 must be flexible and responsive to the needs of a given case. S. 24 must be permitted to evolve. (feel free to be creative!)

■	R. v. Ferguson [2008] SCC
●	Available remedies if minimum sentence legislation violates Charter (cruel and unusual punishment)
●	Constitutional Exemptions under Section 24
○	Should Courts grant a constitutional exemption under s24 or strike down laws under s52?
○	Constitutional exemption not available for Section 12 violations 
○	Court does not foreclose the possibility of constitutional exemptions, but very rare and some factors to consider:
■	Intrusion on the role of Parliament (separation of powers)
●	Granting exemption would change legislation to a different nature than what was intended 
■	Exemptions are akin to reading in a discretion in statutory provisions
■	Rule of law
●	Raises uncertainty if done case-by-case everytime rather than just striking down the legislation
■	S.24(1) remedy in connection with a s52(1) declaration of invalidity in unusual cases where additional relief is necessary to provide the claimant with an effective remedy
■	If s.24(1) is read to allow too broad of an application (ie. applying to legislation), it will render s52 useless
○	Courts grant exemption in past cases to relieve the claimant of the continued burden of the law during the period that the striking out remedy is suspended
○	Court has in the past refused to consider exemption as a stand-alone remedy, it is ancillary in nature
○	SCC says cannot infringe on executive power by reaching into prerogative powers (ie. foreign relations) (Omar)
■	In those cases the courts will issue a declaration and no specific order
■	Courts invoking separation of powers to refuse issuing orders
○	SCC can award pecuniary damages under section 24(1) claimants (Ward v Vancouver)
■	Proper approach to award of damages
●	The first step is to establish whether there is a Charter breach.
●	 Next, it must be shown how awarding damages would serve at least one of the three functions of compensation (including intangible interests), vindication and deterrence. 
●	The third step involves considering any countervailing factors which weigh against awarding damages. 
●	The forth step is to determine the appropriate quantum, or amount of money
●	Final step, must be a court of competent jurisdiction (section 96 Court)
■	Section 24(1) damages are not private law damages (claimant can still sue in tort)
■	Proper approach to section 24(1) damages should be incremental
○	Section 24 is very open ended, now includes damages

CHARTER: FREEDOM OF EXPRESSION S.2(B)

Introduction:
●	Fundamental freedom in the Charter
●	Bill of Rights guaranteed freedom of speech and freedom of the press
●	2(b) is broad and referred to simply as freedom of expression
●	What to look for in these cases:
●	Scope of section 2(b) and any limitations
●	How to make a case for an infringement
●	Learn how to make room in Section 1 so that it can be flexible
■	Section 1 can be very flexible
●	Learn to evaluate the merits of the law
●	Learn how to make room in an argument so you can reach the result you are looking for
●	Once the pressing and substantial objective is determined in court, it stays
Leading Cases
●	Irwin Toy Ltd. v. Quebec AG [1989] SCC
○	Case of laws against advertising to children
○	The leading case that sets the framework for analyzing 2b
○	Irwin Toy goes to commercial expression

○	Establishing Infringement (Freedom of Speech) – onus on claimant
1.	Does the activity fall within the sphere of conduct protected by freedom of expression?
●	Not all activity is protected by freedom of expression
●	If activity conveys or attempts to convey a meaning, it has expressive content  protected
●	All content of expression is protected except violence (maybe even more)
○	Line is drawn on a case by case basis
●	Commercial expression protected as well
2.	Was the purpose or effect of the government action to restrict freedom of expression?
●	Purpose
○	Singling out and aiming at particular meanings that are not to be conveyed
○	Also an infringement if purpose is to restrict form to effectively control the meaning conveyed
○	NOT an infringement if purpose is to control only physical consequences of certain human activity, regardless of meaning conveyed
○	If government’s purpose was to control a harmful consequence of the conduct then be careful of:
■	Aiming at harms to individuals which consist of their coming to have false beliefs as a result of those expression
■	Harmful consequences of acts performed as a result of the expression
●	Effects (plaintiff’s burden)
○	Plaintiff must show the effect of government limited freedom of expression and must promote at least one of the following principles
■	Seeking and attaining the truth is an inherently good activity
■	Participation in social and political decision making is to be fostered and encouraged
■	Diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant environment
○	Precise activities that promote the values above must be looked at case-by-case
○	Justifying Infringement under Oakes Test
1.	Pressing and Substantial Objectives
●	Protecting a vulnerable group is always pressing and substantial
●	Legislature not obliged to confine itself solely to the most CLEARLY vulnerable group (OK to exercise reasonable judgment)
●	Courts are not to micromanage (ie. age should be 13, not 10)
○	Courts do not second guess if legislature made a reasonable assessment of scientific and other evidence
○	Margin of appreciation
2.	Proportionality
a.	Rational Connection
b.	Minimal Impairment
○	The choice of means, like the choice of ends, require an assessment of conflicting scientific evidence and differing justified demands on scarce resources
○	Courts are not to micromanage (ie. age should be 13, not 10)
■	Courts do not second guess if legislature made a reasonable assessment of scientific and other evidence
■	Margin of appreciation
○	Not looking for the MINIMUM impairment, just reasonable evidence to support the means
○	Must have sound evidentiary basis for concluding that the means were proportional and minimal impairment
■	OK to rely on social science evidence to help decide the means
c.	Cost-Benefits Analysis
●	R. v. Keegstra [1990] SCC
○	Constitutionality of Criminal Code hate speech provisions
○	Majority:
●	Characterization of Section 2(b)
●	Hate speech is not linked to the core values of a “free and democratic society” and therefore not the most important form of expression that deserves protection, but it does not go as far as violence
○	In the future, there is a possibility to argue that violence can include hate speech
●	Section 1 Analysis
●	high deference to Parliament
●	Canada’s international HR obligations, section 15, section 27 inform interpretation of Charter and section 1 objectives
●	Minimal impairment: Parliament does not need to find the least intrusive approach in every instance. If there are many choices and some are more restrictive, it is for Parliament to choose
○	Minority:
●	Characterization of Section 2(b)
●	Considered hate speech as central to 2(b) because it is linked to political speech
●	Section 1 Analysis
●	Must focus on the Constitutionality of the statute, and not on what the claimant did
●	Rational Connection: consider not only Parliament’s intention but the actual effect of the legislation. It seems that the actual effect is not connected to the objectives.
○	In effect, this is a form of second-guessing the legislature’s work
○	Consensus:
●	Characterization of Section 2(b)
●	Freedom of expression is very broad, and includes hate speech. Hate speech is not the same as violence and is protected under 2(b)
●	Limitations/restrictions on freedom of expression should be considered under Section 1
●	Activities cannot be excluded from 2(b) on the basis of the content or meaning being conveyed
●	The characterization of the right will determine the level of justification required under section 1
●	Overbroad legislation cannot satisfy minimal impairment
●	R. v. Butler [1992] SCC
○	Selling pornography in a store and charged under the obscenity provisions of the CC case (justified)
○	Vagueness Under Section 1 in Limine
●	Issues
●	Is the law so vague that it does not qualify as “a limit prescribed by law”?
●	Whether the law is so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools? (“an intelligible standard according to which the judiciary must do its work”).
●	Vague NOT the same as flexible
●	Varying interpretations of legislative term is not fatal
●	Key is WHETHER THE COURTS HAVE GAVE IT SENSIBLE MEANING
●	If JUDICIAL INTERPRETATION yields an intelligible standard  met the threshold test for section 1.
●	The court in this case interpreted the CC first and then claimed it has an intelligible standard

○	Freedom of Expression (2(b))
●	purely physical activity is different from an activity that is “physical” BUT conveys ideas, opinions, or feelings
●	very broad, cannot exclude protection based on content or meaning being conveyed
●	physical activity CAN be a form of expression if there was some deliberate choice by the creator as to convey some meaning

○	Characterization of the Activity
●	Values underlie 2(b) include search for truth, participation in the political process, and individual self-fulfilment  (more protection and harder to justify if closer to “core”)
●	Economic motivation may make activity less worthy of protection and “easier to justify under Section 1” (a factor the court relies on to characterize the expression)
●	Key is to characterize the expression as close to core or not
●	CC purpose is aimed at this activity

○	Section 1 Justification
1.	Pressing & Substantial Objective
●	Easier to persuade the court if objective is to avoiding harm to society, rather than just pointing to morality
●	Morality
○	Law grounded in morality is not illegitimate
■	Moral disapprobation is recognized as an appropriate response when it has its basis in charter values
○	Setting a moral standard is not the only point, but also implies avoidance of harm
●	not limited to the pressing & substantial objective intended at the time, these can evolve based on changing circumstances (as long as still consistent with original intent).
○	shift purpose doctrine = changing the objective, which is not allowed. But if we argue that the purpose was very broad, then this doctrine won’t apply
2.	Proportionality (where the core of 2(b) becomes highly relevant)
a.	Rational Connection
○	Sufficient  that Parliament had a reasonable basis
■	There is often conflicting evidence and studies
b.	Minimal Impairment
○	Not necessary that the legislation be the “perfect scheme” but it must be appropriately tailored in the context of the infringed right
■	Might be easier to pass this if the government carves out exceptions and defenses
○	Once parliament finds harm, they can prohibit the act, they are not confined to restricting it only
c.	Cost-Benefits Analysis
○	Economically motivated
○	Not close to core
●	Ramsden v. Peterborough [1993] SCC
○	Utility poles postering case – freedom of expression on public property
○	Postering is a form of expression
○	Introduces a location exception to the scope of 2(b)
○	The modified test applies when the government action’s effects affect freedom of expression, not the purposes 
○	Can argue that an expression is not under 2(b) due to location or violence
○	Irwin Toy Freedom of Expression Test – Part 1 modified for public property
1.	Does the activity fall within the scope of s 2(b)?
a.	Does the activity constitute expression?
b.	Is the activity on public property protected by s. 2(b)?
○	Three separate approaches
■	L’Heureux-Dube (broadest)
●	All restrictions on expressive activity on public property violates 2(b) (but some public property remains outside 2(b))
●	Place, time, manner restrictions must be justified under s.1 using the following factors
a.	Traditional openness of such property for expression
b.	Whether public is ordinarily admitted to the property as of right
c.	Compatibility of the property’s purpose with such expression
d.	Impact of the availability of such property for expression on the achievement of 2(b) purposes
e.	Symbolic significance of the property for the message being communicated
f.	Availability of other public arenas in the vicinity for expression
■	Lamer
●	Balancing interest of individual in expressing vs government’s interest in ensuring effective operation of services and undertakings in accordance with their intended purpose
■	McLachlin
●	Whether the activity on public property furthers any of the values or purposes underlying 2(b) 
●	Seeking of truth
●	Participation
●	Self-fulfillment 
○	APPROACH REFINED IN MONTREAL (City) v 2952-1366 Quebec Inc [2005] SCC
■	Principled basis for method or location-based exclusion from 2(b) and combines Lamer/McLachlin’s test
■	ONUS IS ON CLAIMANT
■	Whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with purposes which 2(b) is intended to serve?
a.	Historical or actual function of the place? ; and
●	If historical use made out  public place protected
●	Actual function
■	Is the space in fact essentially private, despite being public owed?
■	Is the function of the space (or activity) compatible with open public expression? Or requires privacy and limited access?
b.	Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression.
●	Actual/historical use are good indicators
●	Changes in society/technology can affect the spaces so CONSIDER OHER FACTORS AS WELL

○	Minimal Impairment under Section 1 (usually the basis to strike down the legislation)
●	Must keep in mind the difference between complete ban and restriction in time, place or manner
●	Complete ban harder to justify
○	Easier to justify if the ban is narrowed
●	Vann Niagara Ltd v Town of Oakville
○	Partial prohibition is more likely to be upheld. The types of restriction (time, place, and manner) still need to be rationally connected to the objective
●	RJR-MacDonald Inc. v. Canada AG [1995] SCC
○	Tobacco advertising case – split 4/5 on the section 1 justification (majority strike law down)
○	Minority
●	Charter becoming a tool for commercial claimants to strike down unwelcomed legislation
●	Freedom of expression entails the right to say nothing or the right not to say certain things
●	Section 1 Analysis
●	a normative inquiry requiring the courts to take into account both the nature of the infringed right and the specific values and principles upon which the state seeks to justify the infringement (focus on principles of Section 1 which makes justification easier)
○	must be FLEXIBLE with regard to factual and social context of the case (supported by the use of “reasonable” in s1)
●	Scope and nature of problem relevant in determining appropriate standard of justification and weighing of evidence
●	Legislation directed toward a laudable social goal designed to protect the vulnerable group should have high degree of deference
●	Profit driven expression is far from core of s2(b) and entitled to a VERY LOW degree of protection under s1
●	Very little deference to trial judge to assess “social” and “legislative” facts that arise in the law making process
1.	Pressing and Substantial Objective
○	Protecting society from harm (broad characteriziation)
2.	Proportionality
○	Rational Connection (easy pass)
■	Unnecessary to demonstrate on balance of probabilities, sufficient to show a reasonable basis for believing a rational connection
●	Common sense observations
○	Minimal Impairment (easy pass)
■	Only required to demonstrate measures were the least intrusive, in light of both the legislative objective and the infringed right (no obligation to find least intrusive measure available)
○	Cost-Benefits Analysis
○	Majority
●	Section 1 Analysis
●	The bottom line of the court is that government must DEMONSTRATE using evidence (inferred from the word “demonstrably” in section 1)
●	Section 1 should not be overly technical but must have a bottom line
●	There can be some deference when dealing with a social problem not completely understood BUT CANNOT GO TOO FAR
●	Commercial speech may be easier to justify, BUT no link between the claimant’s motivation and degree of protection has been recognized
1.	Pressing and Substantial Objective (characterization can make a difference)
○	Must not overstate objective
■	Focus on the objective of the infringing measures
■	Cannot exaggerate importance of the objective
○	Objective is to avoid people from being persuaded to buy tobacco
2.	Proportionality (balance of probabilities)
○	Rational Connection
■	If “reason” or “logic” is used then we should ask “would it be surprising to find otherwise?”
○	Minimal Impairment
■	Full prohibition requires government to show that ONLY full prohibition will enable its objective
■	Must not consider balancing until the next stage, focus on minimal impairment!
○	Cost-Benefits Analysis

●	R. v. Bryan [2007] SCC
○	Challenging of elections law on releasing results from Eastern Canada (political expression)
○	right to receive information is covered under 2(b) – at the periphery
●	so does this mean all recipients have standing to complain? However, there is no case that has been argued
○	Harper case, give deference to Parliament in selecting electoral laws for Canada
1.	Natural attitude of deference toward Parliament
2.	In determining the nature and sufficiency of evidence required, must look at context (4 factors below)
○	Majority
●	Nature of Deference to Parliament in Election Laws (likely not limited to political expression)
●	Contextual factors to consider (to see level of evidence needed):
1.	Nature of the harm and inability to measure it
■	In the absence of determinative social science evidence, logic and common sense could be relied upon to assist in section 1 analysis
■	If objectives asserted are matter of “values and principles in a free a democratic society” balance of probabilities is not needed
●	Use logic and common sense
2.	Vulnerability of the group protected
3.	Subjective fears and apprehension of harm
4.	Nature of the infringed activity
■	Legislature must be accorded a certain deference to enable it to arbitrate between democratic values of freedom of expression and referendum of fairness
●	Context is important in the proper characterization of the objective of the impugned provision
●	Section 1 Analysis
●	Pressing and Substantial (very little evidence provided)
●	Whether the government as asserted a pressing and substantial objective is good enough
●	Some objectives, when asserted, are always seen as pressing and substantial
●	Proportionality (more proof)
1.	Rational connection
■	Use logic and reason to establish causal connection
2.	Minimal Impairment
■	Deference to legislature if law falls within a range of reasonable alternatives
■	Can sometimes use logic and reason to supplement evidence
3.	Cost-Benefits Analysis
○	Minority
●	Focused on the need to present evidence and justifying minimal impairment
●	MUST REMOVE HYPOTHETICALS AND SPECULATION with EVIDENCE
●	Difficult to conclude TOTAL bans minimally impairs the right (creates room for argument) – a good position to take as a challenger
●	Baier v. Alberta [2007] SCC
○	School teacher running for trustee position
○	There is nothing that requires that the activity in question be purely or predominantly expression to count as expression for s.2(b) purposes
○	Exceptions to Freedom of Expression
1.	Violent expression
2.	Expression on public property in SOME circumstances
○	Generally s2(b) is a negative obligation and not  positive obligation (unless in exceptional cases) - Haig
●	Underinclusive schemes should be argued under s 15
●	Government under no constitutional obligation to extend platform of expression to anyone
●	Situation may arise where in order to make fundamental freedom meaningful, government must have a positive action (rarely successful because it is akin to ordering the legislature to do something)
○	Irwin Toy Test – modification (when claiming positive right)
1.	Whether the activity is protected form of expression under 2b
2.	Is the claimant claiming positive right?
●	Negative  WHAT HAPPENS???
○	Does not become negative only because there was access to a previous regulatory scheme  doing so constitutionalises first version of each legislation
●	Positive  must satisfy all 3 Dunmore factors
1.	Claim is grounded in a fundamental Charter freedom rather than in access to a particular statutory regime
■	Claiming an unique role is not the same as a fundamental freedom
2.	Claimant demonstrates that exclusion from a statutory scheme has the effect of a substantial interference with his s2b rights or has the purpose of infringing freedom of expression under 2b
■	Exercise of the freedom need not be impossible, but the claimant must seek more than a particular channel for exercising his fundamental freedoms
■	However, if the statute has the purpose of infringing 2(b), it cannot be saved – must be established by claimant if challenging as an invalid purpose
3.	Government is responsible for the inability to exercise the fundamental freedom
●	Greater Vancouver Transportation Authority v CFS- BC [2009] SCC
○	Translink policy for banning political ads
○	Is Translink subject to the Charter? (Charter Applicability)
●	Eldridge
●	Option 1: entity is “government” for purposes of s 32
○	Inquire into the very nature of the entity and virtue of the degree of governmental control exercised to see if it can be characterized as “government”
○	All activities are covered, regardless if the activity can be described as “private”
●	Option 2: Particular activities that can be ascribed to government
○	Investigate the nature of the activity (not the nature of the entity)
○	Scrutinize the activity to see if it is truly “governmental” in nature”
○	Does not bring all actions of the entity under Charter
●	Option 1 applies in this case
●	Translink is not an agent of government but substantially controlled by a local government entity that makes it “government”
○	Is there an expression? Slam dunk
○	Is there a positive obligation or negative obligation claimed? (Freedom of Expression part 1)
●	Positive claim for a platform? Vs Claiming the right to express freely in public space?
●	Option 1: Use of government property for public expression without undue state interference with the content of the expression (City of Montreal) NEGATIVE OBLIGATION
●	Option 2: Gain access to a particular platform and thus place government under a positive obligation to fix the underinclusion (Baier) POSITIVE OBLIGATION
●	The positive obligation must be tied to a claim requiring the government to provide a particular means of expression
●	Baier cannot be interpreted so broadly that any “support” from government invokes a positive rights analysis
●	Option 1 chosen, must differentiate between the content and the means. Ads were rejected based on content, not because the means were unavailable. 
●	When content is restricted it cannot be characterized as underinclusion.
●	Underinclusion involves exclusion from the means
○	Does the policy infringe on right to freedom of expression (apply City of Montreal)? (Freedom of Expression)
1.	Does the advertisement have expressive content that brings it within prima facie protection of s 2(b)? No issue
2.	Does the method or location of this expression remove the protection?
●	Basic question “whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve”. Consider following factors
○	Historical or actual function of the place
■	Look at past/present practice
○	Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression
●	Changes in society and technology may affect the spaces where expression should be protected having regard to the values that underlie the guarantee
●	Where government allows its property to be used for certain expressive activities, it does not commit itself to that use indefinitely but if a change affects a Charter right, any constitutional requirement which attach to the new function must be met
3.	Do the transit authorities’ policies deny the protection? (uncertain if we consider effects or purpose of the policy, in this case it was the purpose that was an issue) No issue
○	Can the limit on freedom of expression be justified? (Section 1 Analysis)
1.	Are the policies considered “prescribed by law”?
a.	Was the government entity authorized to enact the impugned policies and whether they are binding rules of general application?
○	Must draw distinction between policies legislative in nature and ones administrative in nature
■	Administrative: relates to implementation of laws. Usually internal use and informal in nature. These are interpretive aids in the application of a statute or regulation. No express statutory authority required.
■	Legislative: policy establish a norm or standard of general application that has been enacted pursuant to a rule-making authority. As long as the rules are binding and establish rights/obligation rather than specific application and are sufficiently accessible and precise, then it is “law”
■	Administrative are not “laws”
b.	If so, are the policies sufficiently precise and accessible?
●	Law can include common law or regulation, not just legislation
○	Municipal by-laws, rules of a regulatory body, provisions of a collective agreement involving a government entity
○	Where a legislature empowers an entity to make rules, those rules are intended to be binding
2.	Oakes test
●	No rational connection: political ads have no connection to dangerous or hostile environment
●	Blanked exclusion of a highly valued form of expression and ban is too broad  no minimal impairment
●	Obiter: does not mean government cannot limit speech in bus advertisements. Jurisprudence shows that the location and audience of the ads is relevant to the type of limit to impose. Limits on advertising are contextual. Canadian Code of Advertising Standards is a good guide to follow
○	Can a declaration under s 52 be made for the policies? (Charter Remedies)
●	Rules (laws) are better dealt with under Section 52 than 24
●	Unconstitutional laws should not be left on the books for case-by-case remedies
●	Deprives the role of s 52 if all Charter violations are addressed case-by-case
●	Laws have greater effect than actions and thus a broader remedy is more appropriate

Overview: Charter Analysis:

MUST THINK THROUGH THE REMEDY FIRST. Government might have to consider if that remedy is appropriate and argue.
FOUR STEPS:
•	1) S.32 analysis:  Does the Charter even apply?
o	(a) check if claimant is protected by the particular right that he/she wishes to invoke
o	(b) check if the Charter applies to the complaint at all? (govt intervention)
•	2)  Claimant must persuade the court that his/her s.2(b) rights infringed
o	(a) Does it fall w/in the scope of s.2(b)?
§	Covered Expressions:
•	Activity that conveys meaning
§	Exceptions:
•	Acivity that is violent
•	Activity carried out at some public places
•	Some positive right claims
o	(b) Is there an infringement? (2 ways)
§	Purpose of the legislation is to restrict expression; OR
§	Effect of the legislation restricts expression – must pertain to any 1 of these 3 values:
•	(i) Truth Seeking
•	(ii) Political expression
•	(iii) Self fulfillment
•	*Note:  Deal with positive right claims here – Dunmore Factors
•	3) Burden of proof shifts to govt to justify infringement.
o	(a) Is there a law?
§	If too vague for even the purposes of s.1 à charter claim fails
o	(b) Oakes Test:
§	CHARACTERIZE
§	USE CONTEXTUAL FACTORS
§	USE “FREE & DEMO PRINCIPLES”
•	(a) Pressing & Substantial Objective
•	(b) Rational Connection
•	(c) Min Impairment
•	(d) Cost-Benefit Analysis
•	4) DON’T FORGET YOUR REMEDIES!
o	S.52 is always applicable – declare invalidity / maybe Read In
o	S.24 remedies for individual claimant

Discrimination is:
1. Drawing distinctions based upon stereotypes rather than merit. i. Supposed to take account of who people are
2. The reason that this is problematic is that it attacks people's dignity.
i. 1166, human dignity is that an individual feels self-respect and self-worth.
3. The court has identified several contextual factors that it methodically goes through (good starting place -- wrapped in the other criteria).
i.	Vulnerable groups
a.	They are given more protection by section 15. (M v. H)
b.	Greater deference to laws protecting vulnerable groups (aimed at getting rid of inequality) (Law)
ii. Nature of interest affected (1175)

85

Connection between actual circumstances and law (in Law, the distinction based upon age, takes factors in -- it is not arbitrary.)

The Charter- Access to Justice

Leading Cases
●	BCGEU v. British Columbia (Attorney General) [1988] SCC
○	Government employee’s union wants to shut down the court. Given an injunction by the CJBC. Is the injunction an infringement on Charter rights?
○	There cannot be a rule of law without access to the courts
○	Greater public interest must be considered when determining the degree of protection accorded to individual interests
○	Assuring unimpeded access to the courts is plainly an objective of sufficient importance to warrant overriding the constitutionally protected right of freedom and is a pressing and substantial objective
●	British Columbia (Attorney General) v. Christie [2007] SCC
○	Challenge to the tax imposed on legal services. Argued that it was to deny access to justice
○	The right to access in BCGEU is not absolute. Legislature has power to pass laws in relation to administration of justice in the province. There is power to impose at least some conditions on how and when people have a right to access the courts. The case cannot be used to say that every limit on access to the courts is automatically unconstitutional
○	Rule of law embraces 3 principles:
■	Law is supreme over government officials and arbitrary power
■	Creation and maintenance of an actual order of positive laws
■	Relationship between state and individual regulated by law
○	Rule of law is open ended
○	Right to access legal services is only protected by the Charter under 10(b) and section 7, there is no general right to legal assistance whenever a matter is before the courts
○	Jurisprudence and rule of law does not foreclose possibility that a right to counsel may be recognized in specific and varied situations, but no general constitutional right
○	MUST HAVE ADEQUATE EVIDENTIATARY RECORD IN CONSTITUTIONAL CASES

Procedure – Constitutional Litigation

Procedure Issues:
-s.8 of Constitutional Questions Act Mandates that notice be given to the party being litigated
-If no one shows up the court can go ahead and decide the issue
-Notice needs to be given at the trial level
-Notice needs be specific as to provisions and whatnot
-Operability isn’t mentioned but you should probably give notice then anyway too

Finley:
-Extended public interest standing
-Now applies to admin law challenges and constitutional challenges
-Can challenge directory legislation
-Can challenge regulatory legislation
-A person need to show that he is affected by it directly or that there is a genuine interest in the validity as a citizen AND that there is no other reasonable and effective manner in which the issue may be brought before
the court. (Berowski)
-Intervenors need to prevent a new perspective but are limited to issues raised by parties to the case