NCA Canadian Constitutional Law 2 — Questions and Answers
Question 1: Section 15(1) of the Canadian Charter of Rights and Freedoms guarantees equality rights. Which of the following correctly states the test for a s. 15(1) violation?
- The law must treat all individuals identically regardless of any characteristic
- The law creates a distinction based on an enumerated or analogous ground that is discriminatory in substance (Correct answer)
- The law must impose a financial burden on a protected group
- The government must have intended to discriminate against the claimant
Correct answer: The law creates a distinction based on an enumerated or analogous ground that is discriminatory in substance
Under Quebec (AG) v. A and Fraser v. Canada, a s. 15(1) breach requires (1) a distinction in law or in effect, (2) based on an enumerated or analogous ground, (3) that is substantively discriminatory (perpetuates disadvantage or stereotyping). Intent is irrelevant.
Question 2: The Charter's s. 1 'reasonable limits' clause was interpreted by the Supreme Court of Canada in R v. Oakes [1986]. What is the FIRST branch of the Oakes test?
- The means must be rationally connected to the objective
- The objective must be pressing and substantial (Correct answer)
- The effects must be proportionate to the objective
- The right must be explicitly limited in another Charter provision
Correct answer: The objective must be pressing and substantial
The Oakes test has two stages: (1) the government's objective must be pressing and substantial; (2) the means must be proportional (rational connection, minimal impairment, and proportionality of effects). The objective is assessed first.
Question 3: A provincial law requires all signs in shopping malls to be in French only. A challenge is brought under s. 2(b) of the Charter (freedom of expression). The government seeks to justify it under s. 1. Which is the most legally accurate outcome based on SCC jurisprudence?
- The law is valid because provinces can regulate commercial expression
- The law violates s. 2(b) but may be saved by s. 1 if French-only is minimally impairing (Correct answer)
- The law does not engage s. 2(b) because commercial signs are not protected expression
- The law violates s. 2(b) and cannot be saved because language restrictions are always disproportionate
Correct answer: The law violates s. 2(b) but may be saved by s. 1 if French-only is minimally impairing
In Ford v. Quebec the SCC held that commercial expression is protected by s. 2(b). A French-only sign law violates s. 2(b). However, a French-predominant requirement could pass s. 1 as minimally impairing, whereas French-only does not pass minimal impairment.
Question 4: Section 24(2) of the Charter allows a court to exclude evidence obtained in violation of Charter rights. Which test does the Supreme Court apply?
- The evidence is automatically excluded if obtained unconstitutionally
- The court balances the seriousness of the Charter breach, the good faith of the police, and the impact on the repute of the justice system (Correct answer)
- Exclusion is only available for evidence obtained in violation of s. 8 (search and seizure)
- The Crown must prove the evidence would have been discovered inevitably
Correct answer: The court balances the seriousness of the Charter breach, the good faith of the police, and the impact on the repute of the justice system
R v. Grant [2009] established a three-part balancing test: (1) seriousness of the Charter-infringing conduct, (2) impact of the breach on the Charter-protected interests, (3) society's interest in adjudication on the merits. There is no automatic exclusion.
Question 5: Which provision of the Charter allows Parliament or a provincial legislature to enact legislation that operates notwithstanding ss. 2 and 7–15 of the Charter?
- Section 1
- Section 24
- Section 33 (Correct answer)
- Section 38
Correct answer: Section 33
Section 33 is the 'notwithstanding clause,' permitting legislatures to declare a law operates notwithstanding ss. 2 and 7–15. It must be renewed every five years and does not apply to democratic rights (ss. 3–5) or mobility rights (s. 6).
Question 6: In which situation does the Canadian Charter of Rights and Freedoms apply?
- To all private disputes between individuals
- Only to criminal proceedings
- To government action, including legislation and acts of government actors (Correct answer)
- Only to federal government action, not provincial governments
Correct answer: To government action, including legislation and acts of government actors
Section 32 of the Charter limits its application to Parliament and the legislatures, and to the government of Canada and provinces. The Charter does not directly bind private parties, though it can influence common law development in private disputes.
NCA Canadian Constitutional Law 2
Section 15(1) of the Canadian Charter of Rights and Freedoms guarantees equality rights.
Which of the following correctly states the test for a s. 15(1) violation?