Canadian Constitutional Law Flashcards

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?

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.

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?

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.

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?

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.

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?

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.

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?

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).

In which situation does the Canadian Charter of Rights and Freedoms apply?

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.