Rights and Freedoms Flashcards

Under the Canadian Charter of Rights and Freedoms, which legal standard must the government meet to justify a limitation on a protected right?

Answer: The limitation must be prescribed by law and demonstrably justified in a free and democratic society

Section 1 of the Charter, known as the 'reasonable limits clause,' allows rights to be limited only if the restriction is 'prescribed by law' and can be 'demonstrably justified in a free and democratic society.' The Supreme Court's Oakes test operationalizes this by requiring a pressing objective and proportionate means.

The 'notwithstanding clause' (Section 33 of the Charter) allows Parliament or a provincial legislature to override certain Charter rights. Which of the following rights CANNOT be overridden using Section 33?

Answer: The right to vote in elections (Section 3)

Section 33 only allows override of rights under Sections 2 and 7–15. Democratic rights under Sections 3–5 — including the right to vote — are explicitly excluded from the notwithstanding clause and cannot be suspended by any legislature.

A provincial government passes a law requiring all public servants to work on Saturdays. A group of Seventh-day Adventists challenges this as a violation of their freedom of religion. Under Charter analysis, which step determines whether the law can stand despite the infringement?

Answer: The Section 1 proportionality test from R v Oakes

Once an infringement of a Charter right (here, Section 2(a) freedom of religion) is established, the government must justify the limit under Section 1 using the Oakes test: the objective must be pressing and substantial, and the means must be proportionate (rationally connected, minimally impairing, and proportionate in effects).

Which of the following scenarios best illustrates the principle of 'fundamental justice' as protected under Section 7 of the Charter?

Answer: A government deporting a refugee claimant to a country where they face a serious risk of torture, without a hearing

Section 7 protects the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Deporting someone to face torture without a hearing violates both the substantive component (risk to life/security) and the procedural component (no hearing). The Supreme Court addressed this directly in Suresh v Canada.

Under Section 15 of the Charter (equality rights), which analytical approach did the Supreme Court of Canada establish in Andrews v Law Society of British Columbia (1989)?

Answer: Equality requires substantive analysis — laws that draw distinctions based on enumerated or analogous grounds that perpetuate disadvantage can violate Section 15

In Andrews, the Supreme Court rejected a purely formal 'same treatment' model and adopted substantive equality. A Section 15 violation can occur when a law draws a distinction — whether or not intended — based on an enumerated ground (race, sex, disability, etc.) or an analogous ground, and that distinction perpetuates prejudice or disadvantage against a historically marginalized group. Intent is not required.

Freedom of expression under Section 2(b) of the Charter is broad, but the Supreme Court has held that certain categories of expression receive no Charter protection at all. Which of the following is excluded from Section 2(b)'s protection?

Answer: Expression in the form of physical violence

In Irwin Toy v Quebec, the Supreme Court held that Section 2(b) protects all expressive activity that conveys meaning, EXCEPT expression achieved through violence or threats of violence. Physical violence itself is not 'expression' within the meaning of the Charter. Hate speech, though harmful, is considered expression under Section 2(b) and must be justified as a limit under Section 1 — it is not categorically excluded.