Step One: Does the Charter apply to this situation? The Charter only applies to Government action due to s.32(1) of the Charter: Type Case Ratio Examples Legislation Vriend Applies to legislation, even that regulate the private sphere, and also applies to government inaction w/n legislation (i.e. exclusions) YES: Alberta human rights legislation that specifically left out sexual orientation. The Dolphin Delivery The Charter does apply to common-law by virtue of s.52. However the Charter does not apply to common-law rules in private actions – YET the common-law will be interpreted in accordance with Charter principles. Also states that Charter does not apply to judges and their decisions But this is impossible because the Charter expressly applies to judges in their capacity: i.e. presumption of innocence. So now focus is on whether judge is acting in public capacity (charter) or not (no charter). NOTE: Highly criticized, b/c exempts the Court from being a ‘government actor’ although at many times clearly the Court is making government orders. Mainly survives for the principal that the common-law will be interpreted in accordance with Charter principles. CAN ARGUE COMMON LAW VIOLATES: Essentially deals with the problem that a Court can’t do a full scale s.1 analysis for themselves, as who will argue the enforcers side? So the Court in later cases just uses Law
Section Seven Case Ratio Example Test Chaoulli Does the deprive of life, liberty or security of the person? If so, is it in with of justice? Scope of life, liberty and the of the person Reference re ss.193 and 195 Section 7 does not protect individual’s right to practice their chosen profession, and does not protect property or ‘pure economic’ interests generally. Right to practice not w/n scope of s.7 (re ss. 193/195) Gosselin Everyone accepts that principles are protected in the context of an individual’s interaction with the justice system and its administration. The state’s conduct in the course of enforcing and securing compliance with Note that this is before Dunmore. Try to satisfy Dunmore test to argue for a s.7 positive right –if it could pass that it would probably work.
Ratio Example Principles of fundamental justice ½ The principles of fundamental justice are the basic tenants of our legal system. They require: Legal principle Reasonable person thinks is vital to societal notion of justice Capable of precise identification and application with predictable results (manageable standard). Right to “reasonable wait times” NOT a manageable standard- ½ Chaoulli Laws Shall not be Arbitrary This laws that “bear no relation to or [are] inconsistent with the object that lies behind [it]” Rodriguez. ½ the Court: Laws that are unnecessary for achieving the objective are arbitrary. Need to know: state interest and societal concerns the provision is meant to reflect. Need a real connection on the facts between the limit and the legislative goal. ½ the Court: Binnie/Lebel Laws that are inconsistent with the objective are arbitrary. Not arbitrary just because you disagree or think it is not the best way of achieving the goal. InSite promotes health, and the object of the act is also to do that, so denying it is inconsistent. Also clear that crime goes down b/c of insite, so unnecessary for the objective of preventing crime. PHS Evidence of other countries which maintain a private health care system as well as a public health care system used to demonstrate a ban on private health care insurance unnecessary for the goal of protecting a public health care system. Chaoulli
legislature in socially complex issue of child pornography, but instead reads in two highly specific exceptions based on hypothetical situations. ½ Court in Chauolii Complex fact laden policy debate is not w/n the competence of the court to decide. Occurs at the application of s.7… not issue of justiciability, just taking into account what courts can reasonably decide not placing a bar on looking at the issue at all. Adopting arguments from dissent of RJR. This is what underlies the argument that the words “inconsistent” should be used instead of “unnecessary”. PHS Evidence very clear, accepted by both sides, no complex evaluation of social policy therefore Court had no problem deciding and did not defer.
been addressed by Legislature with a possible statutory exemption that is reasonable and justified. (Mandamus- Administrative law remedy) Order a public official to execute a duty. PHS Require Minister or other official to exercise their discretion in a certain way. Declaration of Invalidity (suspended or not): s.52 Guignard Declare offending provision invalid. Can suspend this judgement for a certain time to allow Gov. to make up new law. Read in Exceptions Sharpe Where a law is valid but for a few exceptions, the Court may read these in and uphold the law. No force or effect Where a limit is imposed on a guaranteed freedom and it is not reasonable or demonstrably justified under s.1, the Court may declare the limit to be of no force or effect. Severance Can the offending