c
c 

c


Step 1: General ± Comments

Y

ö| s52 Constitution Act 1982 states any
law contrary to provision of the ³Constitution of Canada´ is ³of no force effect´

ö| uring a JR, procedural and evidentiary rules are the same for federal grounds and Charter grounds.

ö| Judicial review has occurred often in interpreting s91 which lists enumerated heads of power that are competent to the federal
Parliament and s92 lists out laws that are competent to provincial Legislatures
[3 mins]



ö| It guarantees a set of civil liberties that are so important that they should receive immunity from state action.

ö| Charter is part of the constitution therefore it can only be altered by a constitutional amendment

ö| It applies to both levels of government (s32(1)) and will usually apply if government delegates a compulsion to a body or
person and will not apply between two private parties.

ö| To receive benefits one must be inside Canada. Singh v Min. of Employment and Immi. (1985).The claim will usually be
brought by the rights holder.

ö| Corporations cannot benefit from s2a, s7,s 9, s10, s11e, s13, s14.

ö| Any laws enacted before April 17 1982 will have ³no force or effect´

ö| It is considered a unifying instrument, adding a dimension of allegiance to Canada as a whole while invoking national
standards.
ö| The standard of proof of legislative facts in Charter cases is the civil standard ( balance of probabilities) R v Oakes 1986
[5 mins]

Step 2: Judicial Review

ö| Y


If a law is challenged on federal and Charter grounds, Hogg argues that presence of s33 override and the support given in
s31(1) with the phrase ³in respect of all matters within the authority of´ federal grounds take priority.

¦
Y

There are
two steps involved to determine whether a law falls within a legislative competence of the
legislature that enacted it.
1.| First, identify the matter (pith and substance or ³characterization´) of the challenged law;

p


2.| Second, assign the matter to one of the ³classes of subjects´ in the Constitutional Act 1867.
[2 minsë mandatory]

¦
ë There are two •–‡’•‹Œ—†‹…‹ƒŽ”‡˜‹‡™–‘†‡–‡”‹‡™Š‡–Š‡”ƒ…ŠƒŽŽ‡‰‡†Žƒ™†‡”‘‰ƒ–‡•ˆ”‘ƒŠƒ”–‡””‹‰Š–

1.| First, Y




 
Y

 Y

  In this stage, the courts characterize the law and the
meaning of the asserted right. (If it does, the courts move to a 2nd stage].
2.| The second step is to Y





  Y

Y




 
 
 Y







Y
 
  Y





Y
Y 
  R v Oakes (1986)
If not, the regulation is
inconsistent with the Ô
and is null and void pursuant to s. 52 of the Ô 
  
[4minsë mandatory]

Step 3: JR Federalë stage one

The courts identify the most dominant feature (³pith and substance´) of a challenged law to understand its matter. The pith
and substance doctrine enables one level of government to enact laws with substantial impact on matters outside its
jurisdiction. The phrase ³in relation to´ in s91 and s92 supports the doctrine. 1
 c
c  c


a.| € a court will always consider the effect of the statute when determining the ³pith and substance´. The courts are
always concerned about the rights and liabilities of those who are affected. Alberta Tax Reference Lord Maughamë ³the court
must take into account any public general knowledge of which the Court would take judicial notice, and may in proper case
require to be informed evidence as to what the effect of the legislation will be´.

b.| $ 



  
 ë When a law is challenged for lack of legislative competence, there is a legal presumption
of constitutionality. When faced with two plausible characterizations of a law, we should choose that which supports
constitutional validity. Siemens v Manitoba [2003] The presumption of constitutionality carries 3 legal consequences.
i.| in choosing between competing, plausible characterization of a law, the court should normally choose between competing,
plausible characterization of a law Re: Firearms Act [2000]
ii.| where the validity of a law requires a finding of fact (finding of emergency) the finding of fact need not be proved strictly by
the government. It is enough that there be a ³rational basis´ for the finding.
iii.| if a wide interpretation would extend beyond powers of the enacting legislative body, the court should read down the law so
as to confine it those applications that are within the power of the enacting legislative body.
ö| These 3 functions have the effect of reducing interference by unelected judges with the affairs of elected legislative. Only
³reading down´ with exist in  cases

c.| š


 Alberta Tax Reference is read as prohibiting provincial legislatures from ³singling out´ banks or other federal
undertakings for special treatment.
Normally, if a provincial law of general application, in relation to a provincial matter may
validly affect federal matters
If a provincial law impairs a vital part of a federally regulated enterprise, then the provincial
lawëalthough valid in the generality of its applications, will not apply to the federallyëincorporated company or federally
regulated enterprise.
d.|  

Y
 acknowledges that some laws have both a federal/provincial ³matter´. ( ieëLaws prescribing rules of
conduct on the roads have a µdouble aspect´ and therefore competent to both Parliament and a Legislature.) Hodge v The
Queen (1883) held´ subjects which in one aspect and for one purpose fall within s92 may in another aspect fall within ss91.´
e.|
$ What is the purpose of a statue or the mischief that needs correcting? A statue can have a purpose in its function
and sometimes a preamble (³intention´) In R v Big M rug Mart (1985)ë The Court acknowledged that if the purpose of the
statue had not been ³religious´ but rather the secular goal of enforcing a day of rest from labour´ then the Act would have
fallen under provincial rather than federal competence. : legislative history is helpful. Reports of royal commissions, law
reform commissions, government policy papers and parliamentary debates are admissible.
f.|
  reviewing judges may pass judgment on the likely efficiency of the statue but leave the wisdom or policy with
legislation . Re Firearms Act [2000]ë Parliament is the judge of whether a measure is likely to achieve its intended purpose;
efficaciousness is not relevant to the Court¶s division of powers analysis.
g.|    The colourability doctrine is invoked when a statue bears the formal trappings of a matter within a jurisdiction
but in reality is addressed to a matter outside jurisdiction. The doctrine applies the maxim that a legislative body cannot do
indirectly what it cannot do directly. Alberta Bank Taxation Referenceë although ostensibly designed as a taxation measure,
was in reality directed at banking. Colourability cases, there is a very fine line between adjudication on policy and
adjudication on validity. The colourability
h.|   

 ë The choice between competing characteristics of the statue, in order to identify the most important one as
matter may be nothing less than a choice between validity or invalidity The hardest cases the choice is not compelled by
either nature of the statue or the prior judicial decisions. The choice is inevitably one of policy. The choice must be guided by
a concept of federalism. Ask is this the kind of law that should be made by a province or federal government? š 

suggests the 3 values of community, efficiency and democracy as criteria that are helpful on appraisal of the allocation of
power in a federal system. Room to argue the weight to each one of the values. Where the case is not clear, a choice
supporting the legislation is preferred.

 


! 


š
ë The leading feature of that plan or scheme will be the pith and substance. It is possible that only part of the statue is
invalid and the balance of it would be valid if it stood alone. Ruleë severance is inappropriate when the remaining good part AëG Alta
v AëG Can [1947] ³is so inextricably bound up with the part declared invalid that what remains cannot independently survive.´

x
 c
c  c


Toronto v York [1938] If two parts can exist independently then it is plausible to regard them as two different laws. There does appear
to be a presumption against severance.

severance is more common in Charter cases. The same test is applied but it is unlikely that the entire statue is struck down
on Charter rights.
Only one case where entire statue was struck downë R v Big M rug Mart (1985)


Y



This doctrine when possible a statue is interpreted as being within the power of the enacting legislative body. This
means that general language of the statue which is literally extending beyond provincial or legislative power will be construed more
narrowly so as to keep it within the permissible scope of power

|
X
 Y  

X
 A law that purports to apply to a matter outside the jurisdiction of the enacting legislative body may be
attacked in 3 ways
1.| the validity of the law or
2.| the applicability of the law
3.| the operability of the law.

 " it could be argued that the law is invalid because the ³pith and substance´ comes with a class of subjects that is outside the
jurisdiction of the enacting body. Alberta Bank taxation Reference (1938)


š
Y" way of attacking is to acknowledge that the law is valid in most of its applications but argue that the law should be interpreted
so as not to apply to the matter that is outside the jurisdiction of the enacting body. If this argument succeeds, the law is not held to be
invalid, but simply inapplicable to extraëjurisdictional matter. ±The technique is ³reading down´ the law.


# Y" way of attacking a law that applies outside the matter outside the jurisdiction of the enacting body is to argue that the law is
inoperative through the doctrine of paramountcy. The doctrine states that where there is inconsistency between federal and provincial
laws the federal law should prevail. Paramountncy render provincial law inoperative to the extent of the inconsistency.

$
Y


Y

 ë
a)| Y 
Y

 a valid provincial law may not impair the status or essential powers of a federally
incorporated company. John eere Plow Co v Wharton [1915]
b)| Y 
 Y

Y%
undertakings engaged in interprovincial or international transportation or
communication , which come under federal jurisdiction under the exception to s92(10) are immune from otherwise valid
provincial laws which would have ³sterilizing´ the undertakings
c)| 
Y
ë the doctrine of interjurisdictional immunity also applies outside to fields of transportation and
communication.
d)|  
 


  Y  




the pith and substance doctrine , which allows a provincial law to ³affect´ a
federal matter is applied more often the interjurisidcitional immunity. Provincial laws may validly extend to federal subjects
unless laws ³bear upon the those subjects in what makes them specifically of federal jurisdiction.´ The rule which emerged
isë Ordon Estate v Grail [1998] if the provincial law would affect the ³basic, minimum and unassailable´ core of the federal
subject, then the interjurisdictional immunity doctrine stipulated that the provincial law must be restricted in the applications
(read down) to exclude the federal subject. Canadian Western Bank v. Alberta,[2007] 2 S.C.R. 3 If, the provincial law did not
affect the core of the federal subject, the pith and substance doctrine stipulated that the provincial law validity applied to the
federal subject.
e)|

 

  ë  there is no case applying the doctrine of interjurisdictional immunity to federal laws to protect
provincially incorporated companies or provincially regulated undertakings. The doctrine should be reciprocated but the
weight of the authority seems to be given to a federal head of power

Step Three: JR Federal Stage Two

Once the pith and substance (matter) of the challenged law has been identified, the court will then assign it to one of the

³classes of head´.


&'
 
ë once the pith and substance (matter) of the challenged law has been identified the second stage of the judicial review is
to assign it to one of the ³classes of head´.

R
 c
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&'
  
ë each class of subjects are listened in ( and () of the Constitution Act 1867. Y 
 ë Papp v Papp ëthe
pith and substance doctrine occasionally has the same effect.
&'

 
Y
ë The Constitution of Canada does not include an ancillary doctrine (like the US or Australia) in the
enumerated heads of power of either Federal Parliament or provincial Legislatures. No such power is needed in Canada. The pith and
substance doctrine enables a law that is classified as ³in relation to´. #
* 



 

+ allows each enumerated head of
power to embrace laws that have some impact on matters entrusted to the other level of government and it provides a flexible standard
which gives the enacting body considerable leeway to choose the legislative techniques it deems appropriate which was applied in R v
Zelensky(1978) & Multiple Acces. The impugned provision be ³essential¶ to the legislative scheme is stricter then the rational
connection test found in Pappv Papp.
ö| For a major encroachment it deserves a stricter testë the impugned provision must be essential to the legislative scheme
ö| ickson CJ ³as serious of the encroachment on provincial powers varies, so does the test required to ensure that an
appropriate constitutional balance maintained.´
&Y'


3 provisions that confer concurrent powers. First s92A (2) ±confers on the provincial Legislatures the power to
make laws in relation to the export of natural resources. and s92A(3)ë is explicit the power to make laws in relation to the export of
natural resources, trade and commerce power. Secondly, s94A confers on the federal Parliament the power to make laws in relation to
old age pensions and supplementary benefits and the sections acknowledge the existence on concurrent provincial power. Thirdly,
s95ë confers power on both the federal Parliament and the provincial legislature¶s concurrent powers over agriculture and
immigration. Two doctrines allows substantial area of concurrency in Canada. The double aspect doctrine and the second judge made
doctrine that leads to concurrency is the ³pith and substance´ doctrine.

&'
 
ë the distribution of power between the federal Parliament and the provincial Legislature is exhaustive. exceptions
to this doctrineë the framers knew created s92(16)ë is generally all matters of a merely local or private nature of the province. The
opening words of s91 give the federal Parliament the residuary power to ³make laws for the peace, order and good government of
Canada...´ Any matter which does not come within any of the specific classes of subjects will be provincial if it is merely local or
private (s92 (16) and will be federal if it has a national dimension (s91, opening words)


&'

 

 
ë this doctrine is one of the means by which the Constitution Act 1867 has been able to adapt to the
changes in Canadian society. It stipulates that the language used to describe the classes of subjects is not frozen in time in 1867 so
Undertakings connecting the provinces could be telephone service.
Some critics argue against it (³orignalism´) stating that the courts are forever bound by the ³original understanding´ This was seen in
Same Sex Marriage reference (2004). The SCC emphasized the ³living tree´ quality of the Constitution. A good example can be seen
in Re: Employment Insurance Act [2005]ë where the evolution of role of women in the labour market and the role of fathers in child
care was highlighted. The constitutional language must be ³placed in the proper linguistic, philosophical and historical context of the
provision.´

&'


 


  

democracy, constitutionalism, the rule of law, the independence of the judiciary, the protection of civil
liberties and federalism, are some of the principles. There are a number of cases where the SCC has found an unwritten principle in
the Constitution. that is enforceable in precisely the same way as if it were an express term
Manitoba Language Reference(1985)ë
rule of law Re: Remuneration of Judges (1997)ëjudicial independence Succession Reference (1998)ëdemocracy, federalism,
constitutionalism, and the protection of minorities.


Ô




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Step 3: JR Charter ë Stage One Characterisation

R v Big M rug Mart [1985] To establish a violation of a Charter right, 6
 must show either the Ô
 


(ë
)  its 
&
) abridges a Charter right. R v Jones 1986. If the effect on the Charter rights
is trivial or insubstantial, there is no breach of the Charter. U
The effect of this Challenged law is...? (preamble, mischief) [3 minsë]
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,
 ± guarantees everyone has the right to life liberty security of person in accordance with fundamental justice )

š
$


o the provisions deprive individuals of their life, liberty or security of the person; and (2nd ) if so, whether
this deprivation is in accordance with the principles of fundamental justice:, ½ 

ë , [2003]. [3 mins ]

'$$ X€š
#-
Irwin Toy v Que [1989] s7 applies to ³everyone´ but this does not include corporations. Singhë It includes anyone in
Canada (illegal or legal immigrants) but not a foetus R v Morgentaler (No 2).
.$ €
Xš
- s 7 applies only to ³governmental action´ as defined in s32 Charter but will usually apply if government delegates
a compulsion to a body or person.
X€
Chaoaulli v Que [2005]ë #
š
 Y that excessive waiting times for treatment in the public health care system of Quebec
increased the risk of death, and were in violation of the right to life (as well as security of the person).
X.€ #/ Re: ss 193 and 195.1 CC ë³ + includes freedom from physical restraint Blencoe v BC (2000)ë liberty in s 7 it also
applies whenever a law prevents a person from making ³
Y



 .´
š€$ X#/

$€ š ë ½ 
    Ô   [1993], Sopinka J. stated security of the person encompasses ³a notion of
personal autonomy involving, at the very least, control over one¶s bodily integrity free from state interference and freedom from stateë
imposed psychological and emotional stress´. However there has to be a threshold of seriousness to be crossed.
½   

, [1988] elays in obtaining medical treatment which affect patients physically and psychologically trigger the
protection of s. 7 of the Charter 6
     [1999] These ³need not the level of nervous shock or psychiatric illness, but
must be greater than ordinary stress or anxiety´
š€$ X#/
Xš
#-

ö| Re ss 193 and 195.1 CC ës7 liberty must not be interpreted to include property, not including freedom of contract and not
including economic liberty.
ö| Gosselin v Quebec (2002)ë has been interpreted as imposing positive obligations on the state to ensure that each person,
enjoyed life, liberty or security of the person
)
Y


,
 Is the deprivation in accordance with the principles of fundamental justice?


ö| BC Motor Vehicle Reference ± only definition of fundamental justice. 
¦ assertion that the ³
  


Y


 





Y



* 





+
ö|
R v MalmoëLevine (2003) The court created 3 requirements for a rule to qualify as a basic tenet of legal system and therefore as
a principle of fundamental justice.   the rule must be a ³legal principle´. š
Yë there must be a ³significant societal
consensus that is fundamental to the way in which the legal system ought to fairly operate.´
# Yë the rule must be capable of
being ³identified with sufficient precision to yield a manageable standard
ö| BC Motor Vehicle Reference (1985)ë that fundamental justice covers both substantive and procedure justice.
ö| Chaoullië SCC held that a fundamental principle of justice that a law not be arbitrary.
' .X# ' /
'
$'X

Rodriquez v BC (1993'
š
% 
¦ asserted that the principles of fundamental justice must
be *
Y
 ´ in the sense that they would have 






 
 .

McLachlin J,
L¶Heureux ± ube J and the substantial agreement of Cory Jëin their view a law would violate fundamental justice if the law
was ³ ´ or *
 ”
}' $€


R v Nova Scotia Pharmaceutical Society (1992)ë The law should be ³intelligible´ and should sufficiently delineate
³an area of risk´ and whether the law provides ³an adequate basis for legal debate´
Xš$ $ #X'#€ R v Malmoë Levine (2003)ë
The doctrine of ³disproportionaity´ is a breach of the principles of
fundamental justice. This doctrine of disproportionally requires the court to determine:
1) whether a law pursues a ³legitimate interest´ and if it does
2) whether the law is grossly disproportionate to the state interest
ö| Absolute Liabilityë prison for these crimes is a breach of fundamental justice. 
ö| The rules of natural justice are rules of procedure only: they require a hearing, unbiased adjudication and fair procedure. ue
process was omitted from s7 in order to make it did not give rise to a Canadian doctrine of substantive due process.


 c
c  c


'X
# X' 
Charkaoui v. Canada (Citizenship and Immigration), [2007] SCC took a more radical departure from the
traditional trial format. The issue of the security certificate was a deprivation of liberty under s7 and that the review process
did not satisfy the principles of fundamental justice because it did not provide the named person a fair hearing

ö|  !
0Y R v Martineau (1990)ë the SCC held that a high level of mens rea (subjective forseeability) that was
required by s7

limits on , Justified under 1

ö| Could a violation of fundamental justice ever be reasonable limit that can be demonstrably justified in a free and democratic
society? Wilson J of the SCC expressed the view several times that the answer to this view would be no: a violation of
fundamental justice could never be justified under s 1.
ö| only in cases arising out of exceptional condition, such as natural disasters, the outbreak of war, epidemics, and the like. Re
BC Motor Vehicle Act 1985

ö| Ô

 v !
"
, [2005] 1 S.C.R. 7 ë SEE LIFE
ö| Ô


v. Ô


Ô   #
$ 
 , [2007] 1 S.C.R. 350ëSEE FAIR TRIAL

s 2(a)Freedom of Conscience and Religionë Constitution Act, 1982, )&' ± guarantees to *
´ the
*
Y

Y´ of ³
 


Y
  
.´ 1.5 mins

[1.5 min]
ö| #

 s. 2(
) is to ensure that society doesn¶t interfere with profoundly personal beliefs that govern one¶s perception of
oneself, humankind, nature or a higher or different order of being. s2(a) shelters individuals/ groups only to the extent that
religious beliefs/conduct might reasonably or actually be threatened.
ö| 


'





 s. 2(
) of the Ô
will be made out where: (1) the claimant sincerely believes in a belief or
practice that has a nexus with religion; and (2) the impugned measure interferes with the claimant¶s ability to act in accordance
with his or her religious beliefs in a manner that is more than trivial or insubstantial: % 
6  , 2004 Trivial
or insubstantial´ interference is interference that does not threaten actual religious beliefs or conduct. As explained in ½   
&

 [1986]


š



ö| )&'
uses the word ³everyone´ this does not apply to corporations but it (Singh) includes anyone in Canada (illegal or legal
immigrants'.

ö| .$ €
Xš
- s 7 applies only to ³governmental action´ as defined in s32 Charter but will usually apply if government
delegates a compulsion to a body or person.
ö|
Y
 


Y

  

R v Big M rug Mart (1985)ë ickson Jë
³is the right to entertain such religious beliefs as a
person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest
religious belief by worship and practice or by teaching or by dissemination.(
-

 Y
  
 

Y
 '
ö| *
 
*
R v Morgentaler [1988]
protects systems of beliefs which are not theocentric (centered on a deity)and which might
not be characterized as religious for that reason(or for some other reason)


ö| *  
 +
Syndicate Northcrest v Amselem (2004) ³all that was necessary to qualify a practice for Charter protection
was that the claimant sincerely believed that the practice was *
  
 
 
´ Religious belief was intensely personal
and can easily vary from one person to another. The test was wholly subjective. Expert evidence was not necessary because the
claimant has to show a sincerity of belief. Even an inquiry into the sincerity of belief was to be ³as limited as possible´
Individuals change and so can their beliefs.

š
#

Y

Y











  



  



ö|

  



   &
, Evidence of a stateëimposed cost or burden would not suffice; there would need to
be evidence that such a burden was ³capable of interfering with religious belief or practice´: &

ö|  In short, legislative or administrative action which increases the cost of practising or otherwise manifesting religious beliefs
is not prohibited if the burden is trivial or insubstantial: see, on this point, ½   , [1986] 2 S.C.R. 284, #Wilson
ö| For a stateëimposed cost or burden to be proscribed by s. 2(
) it must be capable of interfering with religious belief or practice.
ö|  

 
Syndicate Northcrest v Amselem (2004) ± The majority brushed aside the argument of their coëowners that the
claimants had waived their religious rights. Iacobucci Jë wondered whether a religious practice could be waved at all, he
wondered if he by law was sufficiently clear to amount to a waiver«   ሾR

1

ö|
Y  Y

Y
   ëAlberta Brethren ë that ³freedom of religion has µboth individual and collective aspects¶´.

â
 c
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)&„'
 2

What does the religious group believe? What are the effects of this new law? How does it affect them practicing their religions? Is the
regulation making them choose between their religion and something else? [4 mins]

X

 




)&„'
 
  Y

Y





„2

ö| Freedom of religion presents a particular challenge because of the broad scope of the Ô
 guarantee. Much of the
regulation of a modern state could be claimed by various individuals to have a more than trivial impact on a sincerely held
religious belief.
ö| Courts recognize that the issue _facts_is a social problem that has grown exponentially in terms of cost to the community
ö| The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be
threatened. A degree of deference is therefore appropriate: &
, at pp. 781ë82, # ickson C.J.,

(a) X

 
 Y

2

ö| s1 requires that before a proportionality analysis is undertaken, the court must satisfy itself that the measure is ³prescribed by
law´. If a limit on aÔ
right is not ³prescribed by law´ it cannot be justified under s. 1. Rather, it is a government act,
attracting a remedy under s. 24 of theÔ
 
ö|   
!



* Y

+

Y s. 1 of the Ô
: see Irwin Toy Ltd. v. Quebec (A. G.),
[1989] [9 mins]

(b)
X



 

 

Y




Y

  2

ö| Maintaining the integrity of a system. the government¶s primary goal is traffic safety, as denoted by the title of the Act. To
further this goal, the Act puts in place a system of licensing drivers. A collateral effect
ö| of the licensing

ö| R v Big M rug Mart (1985)ë Objective did not in fact cause the enactment of the law. ickson CJ rejected the notion that the
purpose of a law might change over time with changing social conditions. ® Y- Purpose is a function of the intent of those who
drafted and enacted the legislation at the time, and not of any shifting variable.


ö| I conclude that the Province has established that the goal of ensuring the integrity of the driver¶s licensing system so as to
minimize identity theft associated with that system is pressing and substantial. Having established that the limit on the right is
a measure ³prescribed by law´ and that the asserted purpose of the limit is pressing and substantial
[3ë4 mins]

(c) X




 



Y
 
2

(i) X

 
 

 


Y


2

(ii) 

 

 
 

 2
(iii) X


 




2 [5 mins]

i) Federal/ Province must show that the new requirement is rationally connected to the goal of preserving the
integrity of the driver¶s licensing system by minimizing the risk of identity theft through the illicit use of driver¶s
licences. To establish a rational connection, the government ³must show a causal connection between the
infringement and the benefit sought on the basis of reason or logic´: ½ ½ë


 $    Ô


 

, [1995] ë any evidence to support the views? R v Oakes [1986] ë %

³There must be a rational
connection between the basic fact of possession and the presumed fact of possession for the purpose of trafficking´.
The reverse onus clause could not satisfy this requirement because it did not make any stipulation as to the quantity of

±
 c
c  c


narcotics in the possession of the accusedëpossession of a small amount of narcotics does not support inference of
trafficking.
ö| Hutterian Brethren ë The issue at the stage of rational connection is simply whether there is a rational link
between the infringing measure and the government goal.

ii) or ask are less harmful means of achieving the legislative goal?
ö| The court may apply the ½ ½ë


, the minimal impairment analysis. If the law falls within a range of
reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative
which might better tailor objective to infringement . . . . On the other hand, if the government fails to explain why
a significantly less intrusive and equally effective measure was not chosen, the law may fail.
ö| It includes alternative measures that give sufficient protection, in all the circumstances, to the government¶s goal:
Ô


 Ô


Ô   #
$ 
 , 2007 SCC 9, [2007]
ö| oakes vs other nnneeed work 65ë71
ö| Minimal impairment and when you challenging laws
ö| reasonable accommodation application are conceptually distinct Hutterian Brethren
ö| ‘–‡Ǧ‹ƒŽ‘•–ƒ›•‹–—ƒ–‹‘‹–…‘—Ž†„‡‡ƒ•‹‡”–‘…‘‡—’™‹–ŠƒŽ‡••†”ƒ•–‹…‡ƒ•«ƒˆ‡†‡”ƒŽ…‘—–”›
Ž‹‡ ƒƒ†ƒ Œ—†‰‡• Šƒ˜‡ –‘ ƒŽŽ‘™ ’”‘˜‹…‹ƒŽ Ž‡‰‹•Žƒ–—”‡• ƒ Dzƒ”‰‹ ‘ˆ ƒ’’”‡…‹ƒ–‹‘” •‘ ’”‘˜‹…‡• …ƒ
’”‘˜‹…‡•†‹ˆˆ‡”‡–•‘…‹ƒŽ‘„Œ‡…–‹˜‡•«˜†˜ƒ…‡—––‹‰Ƭ‘”‹‰ሾʹͲͲͳሿ

iii) When one balances the harm done to the claimants¶ religious freedom against the benefits associated with
the universal photo requirement for driver¶s licences, is the limit on the right proportionate in effect to the public
benefit conferred by the limit?
Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied,
it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the
measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a
measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in
a free and democratic society. R v OakesW. Hogg argues that the fourth branch of 
is actually redundant:
The final stage of 
allows for a broader assessment of whether the benefits of the impugned law are worth
the cost of the rights limitation. In Thomson Newspapers Co. v. Canada (Attorney General),

Conclusion on justification

)&'
Y

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*
+


Y

Y

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Y

 
"

 Y

Y




Y

Y 


 

ö| Re: s193 and s195.1 SCC has defined ³expression´ëactivity is expressive if it attempts to convey meaning

ö| Any activity that is not expression under the Courts definition. € YY
- ³purely physical and does not
convey or attempt to convey meaning.´
ö| All forms of art are communicativeënovels, plays, films, paintings, dances, and music. Re: s193 and s195.1
Ë
 c
c  c


ö| a speaker¶s choice of language is protected Ford v Que [1988]
ö| R v Keegstra (1990)
Expressive activity that takes the form of violence is not protected by s2(b)


ö| content neutralityë R v Keegstra (1990)ë
governing principleë ³is the content of a statement cannot deprive it
on the protection accorded by s2(b) no matter how offensive it be´
ö| R V Keegstra (1990) ë teacher/ anti Semitic ± The court rejected there were any content based restrictions on
the s2 (b) right. s2 (b) covered all message ³however unpopular, distasteful or contrary to the mainstream.´
ö|  
 
 is expression that is designed to promote the sale of goods and services. It is
regulated for public safety reasons.
ö| There are two reasons why commercial expression ought to be protected under the guarantee of freedom of
expression in Canada and the US.
| it does literally fall within the meaning of the word expression and it does make a contribution to ³the
market place of ideas´.
)| it is very difficult to distinguish commercial speech from other kinds of speech
(political/economic/social) ideas are inherit in commercial speech.
In Canada, the balancing of the value of free expression against the value of consumer protection has to
take place within s1.








 




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Y





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 Y

2

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Y




Y

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Y
 
2

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2

Conclusion on justification

a
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Aboriginal Rights s.91(24) Ô 
  , s.25, s.35








 




)&„'
 2

(a) Is the limit prescribed by law?

(b) Is the purpose for which the limit is imposed pressing and substantial?

Maintaining the integrity of a system. the government¶s primary goal is traffic safety, as denoted by the title of the Act. To further this
goal, the Act puts in place a system of licensing drivers. A collateral effect
of the licensing

I conclude that the Province has established that the goal of ensuring the integrity of the
driver¶s licensing system so as to minimize identity theft associated with that system is pressing and
substantial. Having established that the limit on the right is a measure ³prescribed by law´ and that
the asserted purpose of the limit is pressing and substantial

(c) Is the means by which the goal is furthered proportionate?

(i) Is the limit rationally connected to the purpose?

(ii) oes the limit minimally impair the right?
(iii) Is the law proportionate in its effect?

Conclusion on justification

s15, s28 Equality rights

What is the nature of the limit on s 15 or s28 rights?

Is this limit on s15 and s28 justified under s 1?

(a) Is the limit prescribed by law?

10
 c
c  c



(c) Is the means by which the goal is furthered proportionate?

(i) Is the limit rationally connected to the purpose?

(ii) oes the limit minimally impair the right?
(iii) Is the law proportionate in its effect?

(b) Is the purpose for which the limit is imposed pressing and substantial?

Maintaining the integrity of a system. the government¶s primary goal is traffic safety, as denoted by the title of the Act. To further this
goal, the Act puts in place a system of licensing drivers. A collateral effect
of the licensing

I conclude that the Province has established that the goal of ensuring the integrity of the
driver¶s licensing system so as to minimize identity theft associated with that system is pressing and
substantial. Having established that the limit on the right is a measure ³prescribed by law´ and that
the asserted purpose of the limit is pressing and substantial

Conclusion on justification

11
 c
c  c



(a) Is the limit prescribed by law?

(b) Is the purpose for which the limit is imposed pressing and substantial?

Maintaining the integrity of a system. the government¶s primary goal is traffic safety, as denoted by the title of the Act. To
further this goal, the Act puts in place a system of licensing drivers. A collateral effect
of the licensing

I conclude that the Province has established that the goal of ensuring the integrity of the
driver¶s licensing system so as to minimize identity theft associated with that system is pressing and
substantial. Having established that the limit on the right is a measure ³prescribed by law´ and that
the asserted purpose of the limit is pressing and substantial

(c) Is the means by which the goal is furthered proportionate?

(i) Is the limit rationally connected to the purpose?

(ii) oes the limit minimally impair the right?
(iii) Is the law proportionate in its effect?

Conclusion on justification

1x